Articles 25 and 26- Issue of government control over certain Hindu religious institutions

Introduction

• The problem of hierarchical division in Hindu society is prevalent.
• But the issue of government control of temples is distinct from the issue of throwing open Hindu religious institutions to all classes and sections of society.
• To confuse the two is constitutionally misleading.
• Separate pieces of legislation exist — the [Madras] Temple Entry Authorisation Act, 1947 — to address these issues.
• This article is not in favour of state intervention in Hindu religious institutions. This can give a partial view. For a comprehensive analysis, please read: - https://www.aspireias.com/current-affairs-news-analysis-editorials/States-control-over-the-religious-institutions-Issues-with-the-Article-26-of-the-Constitution

A myth (Not proved yet- UPSC candidates can just get an opinion from this)

• A myth is trotted out to justify sovereign control of temples: that Hindu temples were supervised and managed by kings, who “habitually employed ministries to supervise temples and charitable bodies”.
• Like many myths the colonials perpetuated, this too must be disabused: there is not a shred of the historical source to support this claim.
• On the contrary, there are inscriptions, cast in stone, that attest that temples were managed wholly and entirely by local communities.

State in religion

• The major issues of State managed religious institutions are gross mismanagement of financial resources, indisputable corruption by the state and the loss and destruction of temple antiquities.
• The state has assumed the role of religious functionaries to determine who will be heads of Mutts and the authority to conduct poojas.
  • For example, The Shri Jagannath Temple Act, of 1954 entrusted the committee appointed by the state with the task of ensuring the performance of Seva pooja.
  • When the Act was questioned by the Raja of Puri before the Supreme Court, in Raja Birakishore vs The State Of Orissa, the Court made a revelation: the performance of puja is in fact a secular act and, therefore, the state is justified in its regulation.
• The exercise of state regulation of secular aspects of religion was taken to extreme lengths when the Court ruled that the state, by appointing temple priests, was exercising a secular function (Seshammal & Ors, Etc. Etc vs State Of Tamil Nadu).

Distinct aspects

• The writer of the article rightly points out that the Constituent Assembly framed the religious liberty clauses keeping in mind the historical prohibition of entry to certain classes and sections of Hindu society.
• Article 25(2) grants power to the State to enact a law on two distinct aspects.
  • Article 25(2)(a) empowers the state to regulate “economic, financial, political or other secular activities which may be associated with religious practice”.
  • Article 25(2)(b) enables the state to enact a law to prohibit the exclusion of ‘classes and sections of Hindu society to enter into Hindu temples of a public character and also make law for social welfare and reform.
• Thus, the control of secular aspects associated with religion and the power to throw open Hindu temples to all classes and sections of society are distinct.
• The control of secular aspects is not a measure of any social reform.
• Viewed from this standpoint, the Hindu Religious and Charitable Endowments Department is not a “tribune for social justice” as argued in the article nor has it ever guaranteed equal access to worship.
• Nowhere does the text of the Constitution permit the state to assume ownership of properties belonging to religious institutions.
• The only vestige of authority under the Constitution empowering the state to take over the property of religious institutions is under Article 31A(b).
• Even then it is doubtful that this article covers property belonging to religious sects.
• The history of the legislative practice of endowment laws reveals the state's prerogative in ensuring the regulation of only secular activities.
• As a matter of fact, the Shirur Mutt case, while upholding certain provisions of the 1951 Act, struck down a major portion of the Act characterising the provisions as a “disastrous invasion” of religious liberty.

Applicable to charities

• The Waqf Act justification for the legitimacy of control of Hindu religious endowments is misleading.
• A reading of the Act reveals that it applies to charities and specifically excludes places of worship such as mosques.
• In fact the scheme of the Waqf Act supports the argument that the government should not regulate places of worship.

British legacy

• When the British government realised that a secular government should take no part in the management of religious institutions, it enacted the Religious Endowments Act (Act XX of 1863) repealing the pre-existing Bengal and Madras Regulations.
• Interestingly, in handing over the religious institutions to the society, it created committees in every district to exercise control over temples (the British govt. follows negative secularism, whereas India practices a positive form of secularism).

Alternative steps

• This right of representation can be effectuated by the creation of boards representative of religious heads, priests and responsible members of the dharmik sampradaya.
• The logic is simple. Members who profess a particular dharmik sampradaya will have their due interest in mind.