What can be done to keep the state from interfering in Hindu religious institutions?
“It would not be impossible to prove with sufficient repetition and a psychological understanding of the people concerned that a square is in fact a circle. They are mere words, and words can be moulded until they clothe ideas and disguise,” so said the minister (and master) of propaganda of the immortally infamous Third Reich, Joseph Goebbels. Truer words have not been spoken of the nature of propaganda, which is also in a nutshell, the story of “Indian secularism”. The entrenched popular notion that religious minorities have superior religious rights and freedoms under articles 25-28 of the Indian Constitution is a textbook example of a Goebbelsian propaganda and a lie that has been systematically and deliberately perpetuated for decades. So much so, that the average Hindu has come to expect and justify second-class treatment of her rights and her institutions, which is by definition, dhimmitude in action.
Ironically, there is nothing in the language of these articles of the Constitution which remotely suggests that the rights recognised and guaranteed therein are more available to one community than the other. Nor is there anything to suggest that the power of the Indian state to interfere with such rights is greater in relation to one community than the rest. And yet, state legislations abound which interfere only with the rights of Hindus under Article 26 to run and administer their religious institutions. The absence of such statutes in relation to institutions of other communities only makes the existence of Hindu-specific legislations starker.
If one needed a case study to understand the draconian nature of these legislations and their devastating effects on Hindus and their religious institutions, there is perhaps no better or worse example than the Tamil Nadu Hindu Religious and Charitable Endowments (HRCE) Act, 1959, which is the legislation that currently governs Hindu religious institutions in that state. The history of this legislation itself captures the long and short of the story of steamrolling the rights of Hindus. The 1959 Act came about as a consequence of the repealment of the erstwhile Madras Hindu Religious and Charitable Endowments Act, 1951. The repealment of the 1951 Act was, in turn, a consequence of its central provisions being struck down as unconstitutional by the Supreme Court in the landmark judgement of The Commissioner, Hindu Religious Endowments, Madras v. Sri Laxmindra Tirtha Swamiar of Sri Shirur Mutt, delivered in 1954.
What is shocking is that the very same provisions of the 1951 statute, which were struck down by the Supreme Court as unconstitutional, were reintroduced in sum and substance in the 1959 Act. While these reintroduced provisions are currently under challenge before the Supreme Court in a writ petition filed by Swami Dayananda Saraswathi, along with the corresponding provisions of the HRCE legislations of Andhra Pradesh and Puducherry, the specific conduct of these state governments demonstrates that the religious rights of Hindus count for very little and that the Indian state, in general, has no qualms or compunctions in circumventing or contravening the verdict of even the highest court of the land as long as the subject of exercise of its power are Hindus, which speaks volumes of its commitment to the rule of law and equality.
In all the decades that Hindu religious institutions in Tamil Nadu have been under the thumb of the HRCE Department, the ability of the Hindu community to administer its own institutions has been systematically clipped and pared down. Post the promulgation of the 1959 Act, till date, close to 39,000 temples in Tamil Nadu have been taken over by the state government, out of which approximately 85 per cent of the temples receive Rs 10,000 or less in contributions from devotees.
In other words, temples with a monthly income of less than Rs 1,000 are under state control, which defies logic and reasonableness. State appointees, who go by the title of ‘executive officers’, are appointed to temple administrations without there being a due cause and for indefinite periods. In most instances, there is no written order pursuant to which these appointments have been made, which violates the fundamental requirements of natural justice. Once appointed, the executive officers stay put for good and effectively take control of the administration of temples in all respects, secular and religious. From the approval of budgets for performance of daily rituals in the temple to the appointment of key functionaries to the temple administration, the executive officer has the last word. While the Supreme Court’s verdict in the Chidambaram Temple case, wherein the court came down heavily on indefinite and unreasoned appointments of executive officers, served to loosen the stranglehold of the HRCE Department to a limited extent, the rot is so deep that it requires an invasive surgery.
While it is easy to dismiss these facts, which incriminate the conduct of the HRCE Department, as the consequence of executive avarice or negligence, the reality is that the very framework of the 1959 Act facilitates arbitrary and unreasonable behaviour owing to a lack of safeguards to protect the rights of Hindus to administer their own religious institutions under Article 26 of the Constitution. This criticism is equally valid for the HRCE legislations of Andhra Pradesh and Puducherry, given that they trace their origins to the Tamil legislation. Therefore, going by the Tamil Nadu experience with the HRCE Act and the department, it would be banal to point out that state control of Hindu religious institutions has only been to their detriment. In any case, constitutionally speaking, the very existence of these legislations in their current form, which facilitate complete take-over of Hindu religious institutions by the state, is antithetical to the secular framework of the Constitution and the specific rights guaranteed therein to religious denominations to run their religious institutions. Consequently, the time has come for these legislations to be replaced with more constitutionally-compliant ones, which embody the spirit of restrained intervention by the state as mandated by Article 25(2)(a).
Further, the reign of the HRCE Department has wreaked havoc on the upkeep of the temples in Tamil Nadu, the observance of their religious traditions and the preservation of their movable and immovable assets. This criticism stands vindicated by a judgement delivered by the Madras High Court on 21 July 2017 in a writ petition filed by a public-spirited citizen alleging the connivance between HRCE officers, officers of the Tamil Nadu state police and idol smugglers in the theft of temple idols and jewels. In the said decision, the High Court had acknowledged the rich cultural heritage of Tamil Nadu, the repeated attacks on the culture native to this land by foreign invaders and the duty to preserve for future generations whatever is left of our culture. The court then went on to categorically find that the HRCE Department of Tamil Nadu had miserably failed in discharging its primary duty, ie protecting temples and preserving their valuable heritage, which is a scathing report card of the HRCE Department and a vindication of the long-standing position of millions of Hindus and temple freedom advocates that state HRCE departments are worse than foreign invaders when it comes to looting or facilitating loot of Hindu heritage. The High Court further invoked articles 25 and 49 of the Constitution to give a concrete constitutional peg to the rights of Hindus and the obligations of the state with respect to protection of temples and antiques of religious or cultural significance.
Since HRCE legislations are governed by ‘entry 28’ of the concurrent list, it is possible for the Union government to enact a model legislation which serves as a benchmark for state governments. While no consensus has been arrived at thus far among the stakeholders on the broad structure, scope and specifics of such a model legislation, the following could be its broad features:
1. The scope of the state’s power under any such legislation must be strictly restricted to regulation or restriction of economic, financial, political or other secular activity of the institution which may be associated with religious practice. This is to ensure that at no point of time the state has the power under any circumstance to take over the administration of any Hindu religious or charitable institution directly or indirectly. Simply stated, given that remedial measures have to be invoked and applied to rectify mismanagement of a religious institution, the state’s role must be restricted to formulation of a scheme of management which addresses the mismanagement without undermining the traditional system of management of the religious institution and without taking away the power of the Hindu community to administer the institution in accordance with the applicable religious traditions. This approach strikes a balance between the rights of religious denomination under Article 26 and the power of the state to intervene in secular aspects of administration under Article 25 (2)(a).
2. Flowing from the above, it is evident that the role of any HRCE legislation must be minimal and should not have the effect of undermining, diluting, abridging, curtailing or encroaching upon religious aspects under the garb of intervening in secular aspects of administration. This translates to, among other things, ensuring that the de-facto licence permit raj, such as fixation and approval of budget of expenses by the state, that exists in the current framework must be done away with to ensure that Hindu religious and charitable institutions are not reduced to the status of supplicants before HRCE departments. Clearly, the state’s overarching role in administering Hindu religious institutions must be done away with and should be replaced with a minimalist framework whose mandate is limited to corrective intervention through regulation or restriction in the event of mismanagement or if the administration of religious institution is otherwise at loggerheads with Article 25(2).
3. The model legislation must empower traditional temple management systems to the extent that such traditional systems are not inherently discriminatory on a caste or gender basis. Where the history of the traditional management system of a certain temple is lost or unavailable, the legislation must provide for community representation. The underlying sentiment is that the absence of a traditional structure or mismanagement through an existing structure should not be used as alibis for takeover of the temple administration by the state.
4. Resources of Hindu religious and charitable institutions and the proceeds from there should not be used for any secular purpose without the consent of the community, and in any event, should not be used to benefit any other community in the form of subsidies to Haj trips or Holy Land pilgrimages.
5. No member of any other community shall have a say or have a role directly or indirectly in the administration of Hindu religious and charitable institutions.
6. The model legislation may provide for annual and random audit of the accounts of Hindu religious and charitable institutions. This is for the limited purpose of ensuring that there is no mismanagement.
Each of the above enumerated attributes of the proposed model legislation would go a long way in undoing the harm done by decades of Stalinist statist intervention in the functioning and administration of Hindu religious institutions. While this is a laudable goal in itself, severing the state from the temple would also allow the Hindu community to access and use its own resources, which are significant, to protect and further its interests.
Critically, the resources of temples could be used to tackle the existential threats to Hindu traditions and the Hindu way of life. Clearly, there are enough and more reasons to justify freeing temples from state control. Finally, this is an idea whose time has come and it is important to understand the significance and ramifications of this idea at this critical juncture in our civilisational journey.
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