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.
The definition of charitable purpose includes, under Section 2 of the Charitable Institutions Act, 1890 the following matters
- The fund for the relief of the poor.
- The purpose of education
- The purpose of Medical relief and
- Any other object of the General Public
But it does not include
- 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–
- For the regulation of the alienation of the property improperly
- For the purpose of the grant by the government
- For Checking the mismanagement of the institution.
- For maintaining the common pool arising out of the surplus funds of institutions notified by the government.
- For maintenance of the needy institutions by an independent committee.
Also, this Act is not applicable to
- 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
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
- AIR 1973 SC 1461
- AIR1958 SC 255
- 1997 (4) SC 124
- AIR 1963 SC 1636
- Bairagi Mekap v. Shri Jagannath Temple Managing Committee, AIR 1972 Orrisa 10
This article is written by Somnath Sharma, a Law Graduate.