The Madras High Court on Monday dismissed a public interest litigation (PIL) plea seeking to restrain Tamil Nadu Chief Minister M K Stalin from being the chairman of the advisory committee formed under The Tamil Nadu Hindu Religious and Charitable Endowments (TNHRCE) Act, 1959 — the law that enables state control of nearly 36,425 temples, 56 mutts or religious orders (and 47 temples belonging to mutts), 1,721 specific endowments and 189 trusts in Tamil Nadu.

The petitioner S Sridharan had contended that Stalin belongs to another religion and therefore should be mandated to take an oath before a Hindu god at the nearest temple professing the faith in front of two witnesses.

The first division bench of Chief Justice Sanjib Banerjee and Justice P D Audikesavalu refuted the plea and reprimanded the petitioner. Stating the argument of secularism, the court said:

“This is a secular country and secularism is tolerance for the other religion. There has to be a time when the prejudice and vendetta have to be shed particularly when it comes to practicing the religion,”

and that

“Even the Constitution of India permits the oath of office to be taken either in the name of God or in the name of the Constitution. It does not appear that any religion preaches narrow-mindedness or requires followers of other religion or faith to be hurt or injured.”

While the judgement preaches the greatness and importance of tolerance, it does not ponder sufficiently enough over the legal contentions made in the petition. The mere requirement for the head of an advisory committee under an act whose very purpose is to consolidate the administration of Hindu temples in the state, to be Hindu seems to qualify as ‘prejudice, vendetta and narrow mindedness’.

Advocate S Sridharan claims that his arguments are not driven by mere emotions or religious sentiments but stand on sound legal grounds.

He questions the selective provisions of Section 7 of the Act under which the advisory committee is contemplated. This section has different classes of members namely ex-officio, non-officials and officials.

While the mandate is that non-officials and official members should be Hindu by birth and should profess the religion the same condition is not extended to ex-officio members. The chairperson of the committee is the Chief Minister, an ex-officio member. There seems to be no valid reason as to why ex-officio members are granted this exemption.

Reliance is placed on the Supreme Court’s decision in the Padmanabhapuram case, where while appointing a district Judge as the head of the advisory committee, the SC made it clear that the district judge should be a Hindu, if not a Hindu, then the additional district judge who is a Hindu should be made as the head of the advisory committee.

For that matter, the Madras High Court itself in 2020 in its judgement on an earlier petition filed by Sridharan directed the TNHRCE Department to ensure that all officials and staff right from the commissioner himself take the pledge professing Hinduism.

The manner of pledge taking was first prescribed in a government order dated 23 September 1961, published in Part V of the Fort St George Gazette, dated 25 October 1961. It was then made part of the Rules of the Act under the title: ‘The Manner of Proof of Professing’.

The rule which corresponds with Section 10 of the Act states that every person appointed or deemed to be appointed under the Act shall sign a pledge taken before the presiding deity of the nearest Hindu religious institution selected for the purpose and two witnesses, in the immediate presence of the executive officer, chairman or the board of trustees of the religious institution.

The judgement does not dwell on these deliberations, nor does it provide justification for the selective requirements of Section 7 and the exemption granted to ex-officio members. Sridharan claims that Chief Justice Sanjib Banerjee heard him only for a few seconds before he began dictating the order that speaks about secularism, freedom of expression, taking oath in the name of god/conscience and no religion being narrow minded.

The advocate intends to take the matter to the apex court. What will the Supreme Court do? Will it force the Chief Minister, a self declared atheist to publicly profess Hinduism?

Or will Stalin voluntarily step down from the committee? The developments are bound to make for interesting observations.

As for Stalin himself, he has even recently courted controversy by refusing to sport vibhuti (the holy ash) or tilak offered at traditional welcome ceremonies, especially those from temple priests. He also objected to an art work of Tamil poet and Shaivite saint Thiruvalluvar showing the poet wearing the vibhuti and accused the Bharatiya Janata Party of appropriation.

Justice P D Audikesaval

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