Unequal Governance: Comparing the Regulation of Hindu, Sikh And Muslim Religious Institutions

The recent reopening of the Notre Dame Cathedral after a massive fire in 2019, with a restoration cost exceeding €700 million, presents an intriguing phenomenon. France, a champion of laïcité - a principle advocating the separation of church and state - has invested heavily in the restoration of a prominent religious institution.

How can a country so committed to secularism allow the lines between church and state to blur?

The answer lies in the landmark 1905 law, which, while calling for the complete separation of religion and state, also made churches and cathedrals (mostly Catholic) built before that year the property of the government. A similar situation exists with mosques in France. Since 2021, President Macron has sought to tighten control over their affairs, aiming to reconcile Islam, multiculturalism, and the principle of laïcité.

Laïcité, the principle of strict secularism, was shaped by the core values of the French Revolution—liberté, égalité, fraternité. These very ideals inspired India’s founding fathers to enshrine equality in both the Preamble and Article 14 (fundamental right) of our Constitution.

However, Indian secularism doesn’t strictly advocate for a complete separation between religion and government, as in France. Instead, it promotes equal treatment of all religions by the state.

Post the creation of our own unique pedigree of secularism and courtesy the emphasis on equality, one would assume that the Indian state would be cautious in her treatment of religious institutions of different faiths. Unfortunately a closer examination reveals an Orwellian equality- certain religious institutions, particularly Hindu temples, have faced disproportionate state intervention and control.

This analysis delves into the differential treatment of Hindu, Sikh, and Muslim religious institutions, highlighting the disparities in their governance structures and the extent of state interference. By examining specific legislation and historical context, the aim is to shed light on the uneven playing field that exists within India's secular framework.

Constitution and Secularism - A Brief Primer

The term secularism never found explicit mention in the first draft of the Constitution and was inserted into the preamble only during the dark hours of Emergency in 1976. However, that is not to say the initial rendition was devoid of any reference to the concept. 

Subject to reasonable restrictions—Article 15(1) and Articles 25-27 guarantee non-discrimination on the basis of religion, empower religious denominations to manage their own affairs—the Constitution allows for establishing and maintaining religious and charitable institutions, owning and administering property (both moveable and immoveable) and also exempts them from taxation (though the Supreme Court has subsequently permitted the charging of ‘fees’ for services rendered).

While the Constitution in itself via Articles 15, 29 and 30 provides religious minorities exceptional rights when it comes to educational institutions, the focus of this piece shall be restricted to the governance structures that regulate the establishment and administration of religious institutions alone.

Colonial Inheritance Of The '20s

The legacy of discrimination is a colonial heirloom. The British Government in 1925 introduced The Madras Religious and Charitable Endowments Act.

The first draft was inclusive of all religious institutions of the Hindu, Muslim and Christian faiths. However, the consequent uproar by the peoples of the book made the state rethink and the Act was redrafted to exclude them. It was rechristened — The Madras Hindu Religious and Endowments Act, 1927 —applicable to Hindus alone.

Interestingly, 1925 was the same year that the Gurdwara Reform movement cumulated in the enactment of the The Sikh Gurdwara Act. This was post the “Keys Affair”- which can be best described as an attempt by the British to wrest from the hands of the community the ‘keys’ of the Gurudwaras  (both literal and metaphorical). The community was able to mobilise enough protest to make the government concede an abundance of power back into the hands of an elected body of Sikhs.

The British had also enacted the  Mussulman Wakf Act in 1923, mandating the registration of Wakfs within six months of their creation.

Each of these acts have evolved over the years and have been subjected to a variety of amendments to ultimately incarnate into their present forms:

1. The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (TNHRCE)

2. The Sikh Gurdwara Act, 1925

3. The Wakf Act, 1995.

The origins of these Acts, related provisions and their metamorphosis through the decades has been chronicled quite extensively. 

Therefore, this article shall primarily highlight  the discrepancies in the extent of interference by the State in the affairs of the Hindu temples in certain specific areas (courtesy the TNHRCE) while at the same time contrast such features to the liberties granted by the Acts  governing the Gurudwaras and Wakfs.

Election vs Selection

The Sikh Gurdwara Act, 1925 establishes a National Board, which oversees the functioning of Gurdwara Management Committees (GMCs) for each notified Gurdwara.

According to Section 62 of the Act, the members of the National Board are elected from constituencies designated by the Central Government. This Board is then empowered to select key officials for the executive committee—who are elected through a ballot at the Board's annual general meeting. These officials include a President, two Vice-Presidents, and a General Secretary.

Additionally, the National Board has the authority to nominate members to the GMCs. These nominations can be made from among the citizens residing in the district where the Gurdwara is located, or the GMC itself can request nominations from the Board. The members of the GMC are elected for a term of five years.

In contrast, the TNHRCE Act does not offer the same level of independence to Hindu temples. Under Sections 9 and 47 of the TNHRCE Act, the State Government, through the Commissioner appointed by the government, is responsible for making appointments to the temples' governing bodies, including trustees and members of the state-level Commission.

A similar pattern is observed at the district level. The TNHRCE mandates the creation of District Committees to oversee the management of Hindu temples in each revenue jurisdiction. However, the power to form these committees rests entirely with the State Government. As a result, there is no provision for the Hindu community to democratically elect their representatives or administrators, unlike the more independent process granted to Sikh Gurdwaras under the Sikh Gurdwara Act.

‘Mismanagement’

Under Section 65 of the Wakf Act, the Wakf Board is required to document the reasons why appointing a Mutawalli (the person responsible for administering and managing Wakf properties) is not feasible. Additionally, the Board must explain how the absence of a Mutawalli would harm the interests of the Wakf before taking over direct management of the property. However, this direct management can only last for a period not exceeding five years.

In contrast, the TNHRCE Act allows the State Government to take control of Hindu temples by citing "mismanagement". However, the Act does not provide a clear definition of what constitutes "mismanagement," leaving the interpretation open-ended and potentially subject to arbitrary decisions.

Hierarchy of Appeal 

The decisions made by the Wakf Board and the Commission (under the TNHRCE Act) can be overridden by the State Government. However, under the Wakf Act, there is a clear time limit: the state government can only supersede the Board’s decisions within six months (with the possibility of extending this period by another six months).

In contrast, the TNHRCE Act does not specify any such time frame for the State Government to override decisions made by the Commission.

Moreover, the TNHRCE Act gives the Commission limited autonomy, as its decisions are subject to appeal only in Civil Courts. The Act also allows the State Government to hear appeals regarding the Commissioner's decisions, particularly concerning the use of surplus funds from religious institutions.

On the other hand, the Wakf Act grants immunity to the decisions made by the Tribunals and the Board established under the Act. The decisions of the Tribunal are considered final, with no scope for appeal, unless the High Court independently decides to review the records of a case or if an aggrieved party requests it.

Additionally, under the Wakf Act, no court can take action on a punishable offence related to Wakf property unless a formal complaint is made by the Board. Furthermore, no tribunal has the authority to suspend the Board's power to establish a scheme for the administration of a Wakf.

Appointments 

The Sikh Gurdwara Act empowers the board to hire, decide qualifications, emoluments, profiles, remove or suspend any officers/servants to work for the Board. Similar powers are entrusted with the Gurdwara Management Committees. 

However the same privilege is not accorded to the Hindus as the Commissioner (an appointee of the State Government ) is to perform such functions. Thus ensuring the complete exercise of the State Government’s will.

Notably, a state can have different boards for Shias and Sunnis. Therefore, section 13 of the Wakf Act provides for the members of the respective boards to be of Shia or Sunni faith. 

However, while under the TNHRCE Act there is a requirement for the appointee to be a Hindu, there is no compulsion for any trustee to be from the same denomination of Hinduism as of the Devasthanam under consideration. This provision can potentially lead to appointments by the state government of persons who lack proper knowledge and may be inimical to the interests of the temple.

Alienation Of Property

Section 138 of the Sikh Gurdwara Act mandates the approval of the National Board for the alienation of any immovable property of a State Gurudwara. Similarly, Wakf property cannot be alienated without approval of the Board as well. The Wakf Act also provides for compensation and the ultimate return of  the Wakf property back to the Mutawalli when any property is taken over for other ‘developmental activities’.

However, under the section 66 TNHRCE Act, the Joint or the Deputy Commissioner can order the appropriation of endowments for the following purposes-

•  As grant of aid to any other religious institution which is poor or in needy circumstances; 

• The establishment and maintenance of asylums for persons suffering from leprosy;

• For establishment and maintenance of poor homes for destitute, helpless and physically disabled persons; 

Additionally, the Act also provides that the trustee may utilise any portion of the surplus for contribution towards any fund constituted for – feeding the poor – or constructing any building, shed or center for feeding the poor.

It is important to note that for none of these activities is there a specification that the beneficiaries need be only from the Hindu religion and no compensation is provided to the temple for the use of endowments for these purposes.

The provisions discussed thus far provide a glimpse into the differential treatment of different faiths courtesy their regulatory and governance structures within India. We are far from Laïcité and perhaps even further from our own idealised version of Secularism. We certainly are far from Equality.

What is abundantly clear is that Hindu temples have been short changed since the time of the British Raj, particularly in comparison with their Sikh and Islamic counterparts.