Tag: righttoreligion

Case No.

Civil Appeal No. 1013-1015 of 1987

Equivalent Citation

• (1997) 4 JT 124
• (1997) 3 SCALE 1
• (1997) 2 SCR 1086
• (1997) 4 Supreme 388
• (1997) 4 SCC 606

Bench

• Hon’ble Justice K. Ramaswamy
• Hon’ble Justice K. Venkataswami
• Hon’ble Justice G. B. Pattanaik

Decided On

14/03/1997

Relevant Acts

Constitution of India, 1950 – Article 14, Article 15, Article 16, Article 25, Article 26. Uttar Pradesh Sri Kashi Vishwanatha Temple Act, 1983– Section 16, Section 17, Section 18, Section 19, Section 20, Section 20(1), Section 20(2), Section 21, Section 22, Section 22(2), Section 23(2), Section 24(2), Section 25(8), Section 3, Section 4, Section 4(2), Section 5, Section 6, Section 6(1).

Brief Facts and Procedural History

The Supreme Court has received an appeal of the Allahabad High Court’s decision in this case. The two Honorable Justices of the High Court disagreed on whether the Kashi Vishwanath Temple is a place of worship, but they agreed that Parliament has the authority to pass laws governing its administration. The Pujaris commanded pilgrimages, the precincts were filthy, and Lord Shiva’s stolen jewellery was allowed into the premises. A committee was established with the recommendation that the government should seize control of the temple. Accordingly, two ordinances were promulgated one after the other until the Parliament enacted the Act for the management of the temple by the Government.

Issues before the Court

The Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983, which was to manage the temple of Lord Vishwanath, also known as Sri Adi Visheshwara of Kashi, has been questioned for its constitutionality.

The following issues were also up for decision by the Supreme Court:

• Whether Sri Kashi Vishwanath Temple is a denominational temple.
• Do followers of Lord Vishwanath have the constitutionally protected fundamental right to manage their religious affairs and manage the Temple’s assets following the law as guaranteed by Articles 25 and 26 of the Constitution?
• How important and integral are the traditional practices of the religion and religious practice protected by Articles 25 and 26?

Decision

1. Since it does not affect any of the rights of the religious denominations protected by Articles 25 and 26 of the Constitution of India, 1950, the Act passed to manage the temple is constitutional.
2. A denominational temple cannot be found at the Kashi Vishwanath temple. Shaivites are Hindus, and as such, they belong to no particular denomination. They are a part of the religion known as Hinduism. The Act protects the right to participate in ceremonies, rituals, or acts of worship that adhere to long-standing customs. 
3. Although Section 22 is regulated and extends the right to the means of subsistence under Article 21, the rights of those who work as archakas are unaffected.
4. The right to enter the temple, interact with Lord Sri Vishwanath’s Linga, and perform worship there is extended to everyone who practices Hinduism. The Act mandates that the State protect all manifestations of Hindu Lord Vishwanath worship, regardless of whether they are carried out following Hindu Sastras, regional custom, or temple-specific usage.  It is not restricted to a particular sect or denomination.  Shaiva worshipers are Hindus in general and do not belong to any particular denominational sect or group.
5. State regulation may apply to all secular activities that are connected to religion but do not directly relate to it or constitute an essential component of it. However, what constitutes an essential component of religion can be ascertained primarily from that religion’s doctrines following its tenets, historical context, change in evolved process, etc. The concept of essentiality in and of itself does not matter. When determining whether a particular religious matter, practice, or belief is an essential element of the religion, one consideration to make is whether the community as a whole sees the matter or practice as essential.

Analysis

The term “denomination” is extensively covered in this instance. A group that exists as a sect, group, class, or kind and has unique characteristics that set it apart from other groups is referred to as a denomination. The Constitution Bench had to decide on the precise definition of the term “denomination” in The Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt. It was decided, by the definition provided in the Oxford Dictionary, that the word “denomination” refers to a group of people or a class who are united under the same name as a religious group or body and who are known by a distinctive name. Even though Hinduism has many well-known denominations, not all of these groups are considered to be part of the denomination as a whole.

Every court ruling regarding a temple’s religious affiliation turns on the followers of that religion’s central doctrine. The denomination is not developed in a single day. The rituals will undoubtedly resemble Hindu religious rituals in general. However, that in and of itself is not sufficient to contest the status of a religious denomination. One of the twelve Jyotirlingas is Kashi Vishwanath. Jyotirlingas are worshipped following a predetermined set of rituals.  The temple’s followers provide endowments for such rituals by making donations. The pujaris are now considered to be a class that is a religious denomination for purposes of protection under Articles 25 and 26. Article 14 extracts class legislation. This class shall be accorded equal treatment under Article 14 for rights under Articles 25 and 26. 

The contested Act only affects secular activities; it does not affect religious freedom. The provisions of the Act make it abundantly clear what the purpose of the legislation is. It can only help to enhance the property’s management and upkeep. The Board will have the right to take possession of all real estate, including both movable and immovable property, money, valuables, jewellery, records, documents, tangible objects, and other assets that belong to or are a part of the Temple and its endowments under the terms of Section 13.

In State of Rajasthan and Others vs. Shri Sajjanlal Panjawat and Others¹, it was determined, following the ruling in the Durgah Committee of Ajmer case², that a religious denomination’s right to purchase property is distinct from its right to conduct its own business regarding religion. The former can be controlled by laws that the legislature can lawfully pass, whereas the latter is a fundamental right that cannot be taken away by the legislature.

The management of the endowments and property of the Temple shall be vested in the Board of trust for the deity of Sri Kashi Vishwanath temple. There is no controversy surrounding the selection of unofficial members. It is the appointment of the ex-official member of the board as the member in question. This amounts to the government having direct control over temple affairs. Non-Hindus cannot be appointed as board members, according to Section 3. While section 6 (1) calls for the ex-officio member to be appointed and to be of any religion.  But if ex-officio members are not Hindus, section 6 (3) allows for the appointment of the next available Hindu.

The term “Hindu” is currently undefined. According to the Supreme Court of India, a Hindu may or may not be someone who practices temple worship or professes a religion that originated in India.³ Sikhs, Buddhists, and Jain are all considered Hindus even though they don’t necessarily practice all the same rituals and worship as temple devotees. Hindus are guaranteed the right to enter the temple regardless of their religious affiliation under Article 25(2)(b). Can someone who doesn’t believe in the temple be given to the management of the temple?  Secondly, the non-Hindu official will authorize the Hindu official as a member of the board. Whether a non-Hindu will approve a Hindu’s appointment as a representative? The Act’s single goal is to administer the Temple more effectively and properly. Regarding effective management administration, there is no disagreement. It is only intended to usurp authority for the temple’s management. There are people on the board. These individuals need to be free from governmental control.

It has been decided that the Act protects the practice of Hindu religious doctrines, traditions, and usages.  However, the secular administration of the religious matters in the Temple is a secular component. The legislative branch has the power to impose restrictions on and make interferences with the efficient management of such resources. The Temple is not their property, even though Mahant, Panda, and Archaka are in charge. Simply put, the Act gave the Board control over the Pandas. On the designated day, only the pandas’ management rights were terminated and transferred to the Board for better and more suitable management. Neither does it belong to the State nor was it bought for that purpose. To put it another way, the Board has assumed control over the Lord Sri Viswanath Temple’s management now that the Pandas/Mahant are no longer in charge of it. It cannot be argued that this management change results in the property’s ownership rights being acquired or lost.

Hereditary individuals were in charge of running the temple. In the hands of the appellants, the management could still be carried out properly under the Act. There was no need for the appointment of the ex-officials to the board for the management of the temple. The court determined that managing the temple’s endowments and property, as well as other temple business, is a secular activity and is not protected by the religious freedoms guaranteed by Articles 25 and 26. Because of this, anyone, Hindu or otherwise, can control such activities. The Act only gives Hindus the chance to serve on the board that oversees the temple’s endowments and property and is considered a secular endeavour. Ex-official non-Hindu members who have every right to oversee secular activity are being mistreated.  Because if an activity, is secular, then every citizen of the country shall be eligible to be appointed without any discrimination. If an activity is religious, then it should not be interfered with by the government.

Conclusion

The Temple was managed by the descendants of the Mahant. The Act was enacted only for the excellent management of the temple since there was mismanagement by the descendants. Once the Act is established, it must make provisions for the committee’s creation and hand over management of the temple to the pujaris while making significant provisions for the punishment if mismanagement occurs again.

The case involved an appeal regarding the observance of the religious denomination’s fundamental rights, but it ultimately came down to ownership rights of the property and endowments. The court’s decision thus lies where religious and secular activity is distinguished. To keep balancing on this thin line, either the Act shall be amended to include the non-Hindus for maintaining the secular activities or the court shall include the management of the endowments and property of the temple as religious activity.

References

1. State of Rajasthan and Others vs. Shri Sajjanlal Panjawat and others, AIR 1993 SC 706.
2. The Durgah Committee, Ajmer and Another vs. Syed Hussain Ali and Others, AIR 1961 SC 1402.
3. M.P. Gopalakrishnan Nair And Another vs. State Of Kerala And Others, (2005) 11 SCC 45.

This article is written by Somnath Sharma, a law graduate.

India is a land of religions and temples. The country is said to be a live example of Unity in Diversity. It has so many religions, faiths, and sects that the country may be termed as the confluence of the religions of the world. The Indian constitution protects the right to religion as a fundamental right under Article 25, whose second clause carves an exception, encouraging the government to make any law that regulates financial, economic, political, or secular activity related to religious practice or for providing social welfare. This was because India had a past of being dominated by the religion of the state mostly. This also ensured the secular structure of the Indian economy. Establishing and maintaining religious and charitable institutions is recognized by Article 26. Public morality, health, and order are exceptions shared by both articles.

The right to freedom of religion is guaranteed by Articles 25 and 26, but the Constitution does not define what is the meaning of the term “religion”. The only indication it offers is that this term is ambiguous. India is a secular state, and hence the state has to remain separated from any activity related to religion. But it has the right to make laws according to the exceptions provided under Articles 25 and 26. In Kesavananda Bharti v. State of Kerala¹, the Supreme Court declared that “religious freedom restricted by socio-economic reforms”, and “communal advancements” have both been held in check by India’s secularism.

The court determined in Venkataramana Devaru v. State of Mysore²

“Although Article 25(1) deals with the rights of individuals, Article 25(2) controls both clause (1) of Article 25 and clause (b) of Article 26, and covers more comprehensive topics, and hence refers to the rights of communities.”

 In, Sri Adi Visheshwara of Kasi Vishwanth Temple, vs. State of U.P³.,  the Supreme Court ruled as under:

“The religious freedom protected by Articles 25 and 26 is meant to serve as a blueprint for community life and supervise each religion to act in consonance with its cultural and social demands to construct an egalitarian social order. Therefore, Articles 25 and 26 guarantees the freedom of conscience to connect with one’s Creator and live a religious life while also maintaining consonance between the rigidity of the right to religious belief and faith and their intrinsic limitations in terms of religion, religious beliefs, and religious practices.”

In the same case⁴, Court also declared that

“Article 25 and 26 does not protect every aspect of the religion. The constitution also negates the insurance of each and every religious activity without being interfered with. Articles 25 and 26 are to be seen with a practical approach and every human activity cannot be protected under the shade of religion.” 

It is very challenging to define terms like “religion,” “religious beliefs or practices,” or “matters of religion.” This right is not absolute and the state is capable of making legislation about the activities related to it.

Charitable Purpose

The definition of charitable purpose includes, under Section 2 of the Charitable Institutions Act, 1890 the following matters

1. The fund for the relief of the poor.
2. The purpose of education
3. The purpose of Medical relief and 
4. Any other object of the General Public

But it does not include

1. Religious teaching or worship Purpose.

So it specifically speaks to include and exclude such matters as provided above. Whether the religious endowment is a charitable endowment? No. The religious endowment is for religious purposes and has nothing to do with charitable purposes.

Then how and why the Hindu religious institutions are managed under the control of the government? What is the debate over free Hindu temples? The history is too long but is still continuing and has its effects.

In A.V.K.V. Temple v. State of Uttar Pradesh⁵

“These Articles guarantee the freedom to follow one’s religion and to engage in ritualistic activity. The Right to manage the temple or endowments is not integral to religion or religious practice or religion as such which is amenable to statutory control.  The secular activities are practiced in accordance with the legislation enacted by the State, except the practices which are integral to the religion are protected under these Articles. The law makes it abundantly clear that running a religious institution or endowment is a secular activity, and the state has the authority to enact laws to regulate it.”

The Religious Endowment Act, 1863

The Religious Endowment Act, 1863 which was first enacted for the area of Bengal then, has been notified in most of the areas of the Country now. This Act is eminently important while sections 21, 22, and 23 of this Act are the root of this article.

But the preamble to this Act and several orders for its notification in several states are of great concern. The preamble to the Act speaks that for the use of the rents and produce of the land provided to religious institutions as a grant to maintain the public structures, the appropriation of endowments made for the maintenance of such religious institutions, and repairs and preservation of buildings connected therewith. So firstly, it was made to operate in all religious institutions. But due to the effect of Act 34 of 1964, this Act does not apply to any wakf to which The Wakf Act, 1954 applies. The Wakf Act 1954 does not have any provision as contained in Act 20 of  1863. It does not apply to the state of Madras by Act 22 of 1959. Recently, this Act came into force in Jammu and Kashmir by Act 34 of 2019. An important concern to note here is the enactment of the Hindu religious and Charitable endowments Act in the state of Tamil Nadu in 1959, which controls nearly 37000 temples in the state.

Section 21 of this Act makes provisions that when an endowment is made for religious and secular purposes partly, the board of revenue before transferring the property to the trustee, manager, or superintendent or to any committee appointed, shall make it clear about the portion which must remain in the authority of the said board for the secular purpose and also what amount annually shall be charged on the property which is transferred to the said transferee to the said transferor for a secular purpose. Under Section 22 the government is barred from resuming the superintendence of property granted for religious activities or from taking part in its management or apportionment of any endowment for such maintenance or from nominating or appointing any trustee, manager, or superintendent except as provided in the Act.

The phrase “except as provided in this Act” is the exception carved out for the support of government control over such institutions.

Section 23 provides that the Act will not affect the provisions and regulations made under the Act for the preservation and prevention of any injury to antique; historical; or architectural buildings except if they relate to religious institutions. 

The Charitable Endowments Act, 1890

A treasurer is appointed by the Central government for India while he is appointed by the government of the state for such state under section 3 of the Charitable Endowments Act, 1890. An agreement is made between the central government and the person making the application for the charitable purpose of the endowment.

The government and the treasurer are indemnified under the said Act of 1890 for irregularities as provided under section 14.

The Hindu Religious And Charitable Act, 1997

In the State of Karnataka, The Hindu Religious And Charitable Act, 1997 is enacted by repealing the preceding Acts prevailing in the state. This Act needs special mention here because of the reasons given in the preamble of this Act.

The reasons which need to be displayed in this article are–

1. For the regulation of the alienation of the property improperly
2. For the purpose of the grant by the government
3. For Checking the mismanagement of the institution. 
4. For maintaining the common pool arising out of the surplus funds of institutions notified by the government.
5. For maintenance of the needy institutions by an independent committee.

Also, this Act is not applicable to

1. the Matths and temples attached to the matths.

What is important to note is the nature of those needy institutions for which a common pool is made. Whether the government recognizes the Hindu religious institutions only or all the institutions irrespective of the religion.

An endowment is provided by the endower for a particular institution. The endowed wish to use his endowment for the purpose of such an institution, and if it is not possible to use it like this, then at least for Hindu religious institutions.

In fact, the supreme court in a case⁶ has noticed in Articles 25(1) and 26(b), the right to manage its own affairs in matters of religion.

In the area of managing the common pool fund, admirable objects are offered. However, a close examination of some purposes reveals that they appear to be arbitrary in nature. It is important to remember that cash is taken from the Hindu temple. Money is poured by Hindus. It might be a noble gesture to donate it to a struggling institution of another faith. But it can’t come solely from donations to the Hindu temple. The State is required to give these institutions the assistance they require. However, Hindu temples cannot be forced to help these institutions; they may do so voluntarily, but that is not sufficient under the Act’s initial provisions. Under Clause (h) of Section 19, Government has rightly chosen to say that the administration can be for the establishment and maintenance of Hindu children. However, Sections (1) and (j) do not contain those words. This Court does not, under any circumstances, advocate that underfunded institutions of other faiths not receive assistance; rather, it asks who should receive assistance and how. After all, devotees of Hindu temples donate Kanika, or cash, to that Hindu temple for use in maintaining the temple, and it cannot be used for non-Hindu purposes that have no bearing on Hindus. Even though Hinduism does not explicitly forbid such donations, it is still preferable that they only be used for Hindu institutions. Otherwise, it is very likely that Hindu institutions will request support or maintenance from other religious institutions, which could lead to unwelcome religious disputes.

Act 14 of 1920

The statement and object of most of the Acts for the control of the religious and charitable endowments provide for reducing the mismanagement of these institutions. But if this research is not in the wrong direction, there is Act number 14 of 1920 also known as – 

The charitable and religious trusts Act,1920 provides under section 3, the power to move to court with regard to the furnishing of particulars of the trust of a Charitable or religious nature and also to audit the accounts of the said trust.

The Official Trustees Act, 1913

Under the Official Trustees Act, 1913, the official trustee is barred from taking any trust of religious character for business purposes under section 3.

The Official Trustee shall not save as provided by any rules made under this Act, except any trust for a religious purpose or any trust subject to any rule made by the central government under section 30 which involves the management or carrying on of any business purpose 

Conclusion

The government has its own reasons to manage the temples and religious institutions. One such reason is the mismanagement by the religious boards of the funds or endowments they receive. But this is a general problem and it can be scrutinized every three months through a scheme prevailing in the world as auditing. The second reason which seldom gets revealed is the big amount of money collected as an endowment which is helping the government to run various projects. But religious endowments are not to run such projects.

If an endower wishes to endow any property for a secular purpose, why he would endow it to religious institution of his choice whether it is a Temple, Mosque, Dargah, Church, Gurudwara, or any institution of religious nature. The answer is very well clear by the court in a decision that the religious nature of these activities ends as soon as these endowments are endowed to the deity or temple. The management of endowments thereafter acquires a secular nature.⁷

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Citations

1. AIR 1973 SC 1461
2. AIR1958 SC 255
3. 1997 (4) SC 124
4. ibid
5. ibid
6. AIR 1963 SC 1636
7. Bairagi Mekap v. Shri Jagannath Temple Managing Committee, AIR 1972 Orrisa 10

This article is written by Somnath Sharma, a Law Graduate.

-Report by Ojas Bhatnagar

A bench of Chief Justice Munishwar Nath Bhandari and Justice N Mala held that identification of temples constructed must be under the Agamas rules, not by the Tamil Nadu Hindu Religious Institutions Employees (Conditions of Service) Rules, 2020. It has been held in the case of All India Adi Saiva Sivacharyargal Seva Sangam v. State of Tamil Nadu.

Facts

A plea was filed, seeking a direction against the state and the Hindu Religious and Charitable Endowments departments from appointing Archakas (Priests) and other traditional personnel at their discretion. There was a batch of PIL petitions from All India Adi Saiva Sivachariyagal Nala Sangam by the general secretary and 14 others. It wanted to restrain the authorities concerned from appointing Archakas as held by the Supreme Court in another case.

Petitioner’s Contention

The petitioners argued that Qualification under the rules of 2020 cannot apply for the post of Archakas to be appointed in Temples where construction and worship are done as per the Agamas. The counsel for the petitioner made various arguments referring to the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. Reference to the case of Seshammal and others and Adi Saiva Sivachariyargal Nala Sangam and others, supra was made, by citing certain paragraphs to seek the protection of the practice of Agamas for appointment of Archaka/Poojari. Therefore, the
prayer was to strike down the provisions under challenge as well as the advertisement issued by the Executive Officer called for applications for appointment to the post of Archaka/Poojari. The rights of appointment lies with the temple trustees and the government is trying to take over these rights.

The Petitioners also argue that they want to constitute a committee headed by a Retired High Court Judge to identify the temples where construction and worship are done by the agamas, to prove that the Supreme Court had allowed in its judgment, the appointment of an Archakas as per the Agamas. There are various agamas, and the identification of temples about agamas is a pre-requisite for the appointment of Archakas because different agamas follow different worshipping procedures. Therefore, the individual appointments of Archakas should be allowed.

Respondent’s Contention

In the State of Tamil Nadu, there are more than 35000 temples under the Hindu Religious and Charitable Endowments
Department [HR & CE Department]. Identification of those temples constructed as per the Agamas and further bifurcation will solve the issues often brought before this court to challenge the appointment of Archaka/Poojari. But this task is very vast and unreasonable.

Court’s Decision

The court dealt with the constitutional validity of a lot of provisions of the Tamil Nadu Hindu Religious Institutions Employees (Conditions of Service) Rules, 2020. Article 26 of the Indian Constitution states that every religious entity has the right to establish and maintain institutions for religious and charitable purposes and manage and govern its own affairs by how the religion denotes it. The challenge to certain provisions is not justified. However, we apply the doctrine of reading down to protect the petitioners’ rights guaranteed under Articles 16(5), 25 and 26 of the Constitution.

“The appointment of Archakas in the temples constructed as per Agamas would be governed by the Agamas and for that the Rules under challenge would not apply. It would otherwise offend Articles 25 and 26 of the Constitution of India”

The Government framed the rules to identify the eligibility and qualifications of officers and employed their officers to the temple. This act by the Government is wrong.

“It is, however, necessary to apply the doctrine of reading down of those provisions with regard to the appointment of Archakas in the temple or group of temples, which were constructed as per Agamas,”

The appointment of Archakas in the temple or group of temples constructed under the respective Agama shall, accordingly should be governed by the Agamas and not by Rules 7 and 9 of the Rules of 2020. Hence, all the writ petitions are disposed of.