State’s control over the religious institutions- Issues with Article 26 of the Constitution

Introduction

• This article talks about the state's control over the Hindu religious establishments, constitutional backing and the issues involved in it.

Indian Secularism

• The principles on which secularism rests in India are distinct from their western antecedents.
• The Constituent Assembly was especially mindful of the civic history (the practice of social evils like the Devadasi system and untouchability) surrounding matters of faith in India.
• It is understood that left unattended, religion could lead to a perpetuation of historical evils.
• To treat religion as a subject beyond the state’s sovereign reach was to thwart the Constitution’s aim of establishing a free and egalitarian society at its very founding.
• The framers were also conscious that achieving these goals meant that the government had to ensure that resources vital to the commonweal were properly managed.
  • As they saw it, it was the state’s responsibility to guarantee, for instance, that a temple dedicated for public use was, in fact, being put to such use.

Constitutional provisions

• The provisos were written into Articles 25 and 26 of the Constitution.
• Article 25: The provision makes the freedom of conscience and the right freely to profess, practise and propagate religion subject to public order, morality and health.
  • What is more, this right, the provision clarifies, will not stand in the way of the state making laws regulating any economic, financial, or other secular activity associated with religion, or in the way of the state making laws providing for social welfare and reform.
• Article 26: It protects group rights. It grants to every “religious denomination” :
  • the right to establish institutions;
  • to manage its own affairs in matters of religion;
  • to own and acquire property; and
  • to administer that property in accordance with law.
  • This right too is bound by considerations of public order, morality, and health.
  • A plain reading of these provisions shows us that a religious denomination has substantial freedom over matters concerning its faith.
  • But this right does not override the state’s power to make laws regulating the management of properties belonging to these denominations.
  • The state’s authority is wider still in attending to religious institutions that partake a public character.
• The protections of Article 25 are expressly restricted to matters within the domain of religion.
• Government has every authority to regulate and restrict a secular function performed by a public religious institution.
• It was in the exercise of this power that the government of Madras enacted a Hindu Religious and Charitable Endowments Act in 1951, which was replaced in 1959 by the Tamil Nadu Hindu Religious and Charitable Endowments (HR&CE) Act.

As an essential role of the state

• P.R. Ganapathi Iyer points to how Hindu kings habitually employed ministries to supervise temples and charitable bodies.
• Indeed, the regulation of temple management was seen as an essential role of the state.
• The book also shows us how under Mughal administration, the governments of the time recognised that it was their duty to guarantee that all religious endowments were “applied according to the real intent and will of the grantor,” and appointed Mutawallis to manage Waqf properties.
• The circumstances that existed in the 1920s, when the government of Madras enacted its first endowment law, have not substantially changed.
• The statutes of 1951 and 1959 which succeeded the 1927 legislation were both framed with the same objective: to ensure that Hindu public endowments were being put to use for the true purposes for which the endowments were first made.
• To that end, the law accords to a state-appointed commissioner power of general superintendence over all Hindu religious endowments, and it authorises the commissioner, among other things, to appoint executive officers to temples to ensure that their funds are being properly applied.

Shirur Mutt case (1954)

• The Supreme Court of India tested the rationale for this oversight in the Shirur Mutt case (1954).
• In substantially upholding Tamil Nadu’s 1951 legislation — which was repealed and re-enacted in 1959 — the Court recognised that the basic framework of the law was in perfect consonance with the authority vested in the state under Articles 25 and 26.
• Today, with no obvious successor available, should the state surrender its regulatory authority, it will surely be acting in breach of its sovereign duties.

In other religions

• Those calling for deregulation also point to the state’s approach to other religions.
• But a reading of the Waqf Act, 1995, will show us that the government also exercises substantial supervisory control over the management of properties dedicated for religious purposes under Muslim law.
• Similarly, in the State of Kerala, repeated demands have been made by reformist Christian groups for the creation of state-managed committees to administer the church’s finances and properties.

Way forward

• In the meantime, though, we must consider the HR&CE law on its own merits.
• An examination of the legislation enforced in Tamil Nadu demonstrates that the movement seeking a delinking of state and religion misprizes the law’s value.
• If applied properly, the regime will allow the state to act as a genuine tribune of social justice.
• We must constantly demand transparency and hold the state responsible for the administrative standards prescribed under the law.