It is recorded that we in Bharat got our Independence from British rule at midnight. Sad truth for Hindus of this nation is that they are yet to see the dawn of freedom.
Constitutional Rights and Hindus of India
The Constitution of India came into force more than a year after the Universal Declaration of Human Rights proclaimed by the United Nations General Assembly in Paris on 10th December 1948. Article 18 of the UN Charter says, “Everyone has the right to freedom of thought, conscience and religion”.
Article 25 of the Indian Constitution says “Everyone has the right to freedom of thought, conscience and religion and the right freely to profess, practice and propagate religion”. This right is of course subject to public order, morality and health.
As early as 11th August 1919, Germany, in its Constitution, assured full freedom of conscience and belief to all inhabitants of that country, and permitted each religious group to administer and control its own affairs. After much debate and deliberation, the authors of our Constitution came with Article 26 which talks about Denominational Rights or Rights of every Religious Sect. As per Article 26, “Subject to public order, morality and health, every religious denomination or any section thereof shall have the right:
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.”
The words — “every religious denomination”—occurring in the Article are important. They mean that no religious denomination shall be left out in enjoying these fundamental rights of religion and administration. And we can be almost sure that was the intention of the authors of the Constitution as well. No fundamental right in the Constitution except Article 30 was meant to be a “minority” right. There too, minority rights are available for both religious and language minorities.
Articles 25 and 26 are Not Minority Rights
It was the intention of the Constitution that different sects of various religions should be able to freely establish and maintain religious places of worship and institutions including charitable institutions (or maintain the already established ones). The right to maintain implies the right to continue the institution according to the established usage, to carry on the worship and to make it function in the manner in which it has been functioning according to long-established usage. These rights are available to all Indian citizens and groups including Hindu citizens and groups.
Indic Groups and Communities are Not Denominations
The word “religious denomination” is generally used in the context of various sects of the Christian religion. Denominational rights for each of the different Church sects are important in certain countries where a huge inflow of immigrants over more than a century have determined the complexities and nature of its current population. The United States would be the first country that would come to mind as a melting pot of diverse and abundant numbers of denominations. India too has a number of diverse sects in each religion, including Indic religions.
Indic Religious Groups are ‘Sampradayas’
Bharatiyas of different Indic faiths — strictly speaking — do not have religions; they have different dharmas. For them the path that they believe in and adhere to and which they believe would lead them to salvation or to be one with the Divine free of rebirths and deaths is their dharma and not their “religion”. Each dharma of various Indic faiths is a sampradhaya or tradition of dharma.
Exclusive Denominations vs Inclusive Sampradayas
Indic dharmas/sects are not religious denominations that are exclusive beliefs. Every Christian denomination is exclusive. From baptism to burial, each Church allows rights only to the members of their own denomination and more particularly only to the identifiable members of the individual churches. Sampradayas of Sanatan Dharma are not exclusive. They welcome followers of other sampradayas, allow them to partake in the worship in their religious places, and allow other sampradayas to benefit from their charities and institutions.
How Courts and Governments Made a Mouse out of an Elephant
In the landmark Shirur Mutt Case (AIR 1954 SC 282), a seven-judge Constitutional Bench had to define the term “religious denomination” and whether a mutt would come under that definition. The authors of the Indian Constitution had left the term undefined as were other terms like “religious minorities” and “language minorities”. As was (and is) the practice of courts, the Bench referred to Oxford Dictionary (In this case they referred to the Oxford Dictionary of 1897 C.E. Edition and came with the following definition: “A collection of individuals classed together under the same name; now almost always specifically a religious sect or body having a common faith and organisation and designated by a distinctive name.”
It is obvious that the definition is a church-oriented definition or at least one relating to Abrahamic religions. Based on this definition, the Constitution Bench concluded that mutts would be religious denominations and the Bench also declared that each sect and sub-sect of Hindu religion can be called a religious denomination. So far so good. Then came disaster.
Subsequent Court Decisions Ignored Shirur Mutt Judgement
Subsequent judgements from the Supreme Court ignored some vital portions and aspects of the Shirur Mutt judgement concerning religious denominations, spelling disaster for Hindu sampradayas and individual Hindu devotees. One such verdict was the judgement of a Constitutional Bench in Raja Birakishore vs The State Of Orissa where the Bench not only failed to see the denominational character of the Puri Sri Jagannath temple but also adjudicated the writ petition like a suit stating that the fundamental administrative rights under Article 26(d) was not previously raised in the high court for them to consider it.
Almost all Supreme Court judgments and particularly the Constitutional Bench in the SP Mittal Case held on to a very narrow portion of the archaic definition of Oxford Dictionary, viz. “a body having common faith and organisation and designated by a distinctive name”. The other parts of the definition — (a) a collection of individuals classed together under the same name; (b) a sect — quoted with authority by the seven-judge Bench in the Shirur Mutt judgement were happily ignored by every single bench of the Supreme Court and High Courts. The result was that almost every collection of Hindu individuals under the same name was NOT to be treated as a religious denomination entitled to administer their own institutions. No Hindu sect was to be viewed as a religious denomination unless they were a body having common faith, organisation and distinctive name.
Frauds Carried out by State Governments
If the Supreme Court and High Courts ignored or further constricted the meaning of the term “religious denomination” when applied to Religious Institutions of the Hindu pantheon, governments like the Madras state completely ignored the dicta laid down in the Shirur Mutt judgment and other Constitutional Bench judgements made in the year 1954 like the Chidambaram Temple Judgement (Civil Appeal 39 of 1953) and the Ratilal Panachand Gandhi judgement (AIR 1954 SC 388). Till date no State HR&CE Act has defined religious denomination except the Karnataka Act.
Here are some of the frauds unabashedly carried out by state governments:
1. Seven-judge Bench of Supreme Court in 1954 Shirur Mutt Case (and Division Bench of Madras High Court on 13.12.1951) struck down the provisions relating to notification of temples and their takeover by government in Chapter VI of the Madras Hindu Religious and Charitable Endowments Act, 1951. The government continued with the notification of about 60 temples as if no such judgment was ever pronounced by the high court or Supreme Court.
2. Madras government “extended” the notification by government oders in 1956. A Muttathipati challenged these extensions in Madras High Court and when he failed there, he appealed to the Supreme Court. The Supreme Court quashed the notifications en masse on 10.02.1965.
3. Government amended the HR & CE Act and introduced Sections 75-A, 75-B and 75-C in the 1959 Act to continue the notifications notwithstanding the judgement of a 4-judge bench of the Hon’ble Supreme Court of India.
4. These Sections were declared invalid by a Division Bench of the Madras High Court in 1991. The state government appealed to the Supreme Court and when the court posed certain questions they hurriedly withdrew the petition. Thus, the SLP was dismissed as withdrawn. However, the Tamil Nadu state government continues in these Hindu temples without any legal authority from 13.12.1951.
5. TN HR&CE Department frames schemes of administration for temples and introduces the position of Executive Officers in such temples without the scheme provision providing no authority for such positions. In all these schemes, temple executive officers take charge without ever being appointed at all.
6. The Andhra Pradesh government introduced Section 29 in its Endowments Act of 1987 which made presence of Government Executive Officer compulsory in all temples. This is completely against the dictum of the Hon’ble Supreme Court’s Constitutional Bench’s order (08.02.1965) in the SDG Pandara Sannati Case.
7. What started as 3 percent administrative fees for Government Management of Hindu Temples is now 12 percent in Tamil Nadu and 21.5 percent in Andhra Pradesh. Tamil Nadu charges an additional 4 percent of the temple Income as “audit fees”. These exorbitant charges can never be viewed as “fees” for services rendered but only as compulsory taxes on Hindus for their religious practices and beliefs.
8. In hundreds of temples in Tamil Nadu the HR & CE Department appointed Executive Officers under Section 45 of the 1959 Act without prescribing conditions of appointment under the said section. Such appointments are void declared Hon’ble Supreme Court by its judgement dated 06.01.2014 in the Chidambaram Temple Case (Dr Subramanian Swamy Case). The TN government shamelessly continues with these illegal Executive Officers in spite of the judgement of the highest court of the country.
9. In thousands of temples in Tamil Nadu, the Executive Officers are present in these temples without any trace of any orders appointing them to these temples. Even in the temples where they have been appointed by an order of the Commissioner, the orders do not mention any reasons for their appointments or the period for which such appointments are made. As per the Supreme Court of India, such orders are ex-facie arbitrary, illegal and unjust. But what do frauds care about the orders of the Hon’ble Supreme Court?
10. The Kerala government has completely gone against the Travancore Cochin Hindu Religious Institutions Act in appointing the Board Members to the Travancore Devaswom Board and Cochin Devaswom Board. The Kerala government openly carried out fraud by directly appointing employees to temples under these Devaswom Boards. The Guruvayoor Devaswom Act and the Koodalmanikyam Temple Act are against Articles 26 and 31-A(1)(b).
11. The Kerala government is perpetuating a major fraud for many decades now against its Hindu citizens by not paying the annuity for the hundreds of thousands of acres it took over from Hindu temples.
12. The Karnataka government regularly transfers Hindu temple funds for non-Hindu purposes including the state government’s requirements.
13. Tamil Nadu HR & CE Department is indulging in serious frauds and misuse of the Common Good Fund for the past 20 years.
14. The Tamil Nadu government’s HR & CE Department changed the statutory external audit of temples by fraud in 1976. The Rule passed in 1976 was never tabled before the state Assembly and approved.
15. The Tamil Nadu government has not appointed Trustees to about 20,000 temples for the past 11 years. Instead they appoint the servants of the HR & CE Department as the “sole trustee” to these Hindu temples, an act prohibited by the Constitutional Bench of the Supreme Court.
Centre Condoning and Even Supporting These Frauds
Under the Constitution, the law relating to “Religious Endowments” is a concurrent subject. This means any Act by the states or Amendments to such Acts should be given assent by the President of India before it can be promulgated. Assent by the president is actually approved by the home ministry of the Central government. The Central government should be extremely vigilant before recommending the assent of the President in matters concerning religious rights and other fundamental rights of its citizens.
For more than 70 years now, when it comes to Hindu rights and the administration of Hindu institutions, including temples and mutts and the administration of Hindu charities, the laws have been lopsided against Hindus and in violation of the principles of the Fundamental Rights enumerated in the Constitution of India.
The Congress governments which have been in power for the majority of the 70 years would not care about Hindu rights. Indeed, the Congress governments in the states and the in the Centre bent backwards to appease the minority religions — particularly Islam and Christianity — at the cost of Hindu rights, privileges and liberty.
The BJP governments in the Centre, at least the BJP governments which came to power with an absolute majority under Narendra Modi, came under a definite Hindutva wave. But the BJP governments too have been no different from their Congress predecessors in not respecting the constitutional rights of the Hindus. There has not even been a whisper about the denial of such rights or even about governments targeting only Hindu temples and charities for control and regulation.
The result is obviously clear. Hindus in this country are yet to obtain their true freedom. We need a Shivaji to rise again and lead them.
The writer is president, Indic Collective Trust. The views expressed in this article are those of the author and do not represent the stand of this publication.