In the midst of the recent electoral campaign in Tamil Nadu, a movement to free Hindu temples from state control gained some traction. Ask the proponents of the movement who they see as the state’s successor and the answer you get is, the community of Hindus. But by that, what do they mean? Who selects the personnel that will constitute this community? Does the movement want a reversion to the status quo ante that existed before the state intervened in the management of temples? If so, what was that status quo ante ? A lack of clear answers to these questions suggests that what the programme really seeks is to plant in the state’s position powerful private interests, and in the process, reinstate some of the hierarchical divisions that might have been negated, albeit not nearly entirely, through the Constitution and its processes.
Civic history and faith
At an intuitive level, the idea of governments overseeing the management of religious institutions strikes one as anathema to a secular, democratic republic. But the principles on which secularism rests in India are distinct from their western antecedents. The makers of India’s Constitution were conscious of the dangers in promising an American style right to non-establishment. To them, there was little doubt that all persons must be entitled to a freedom of conscience. But that freedom, they believed, ought not to be circumscribed by extending to extreme limits the divide between the state and religion.
Comment | Temple and state
The Constituent Assembly was especially mindful of the civic history surrounding matters of faith in India. It 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.
Caveats and provisos
It was with these ends in mind that various caveats and provisos were written into Articles 25 and 26 of the Constitution. The former 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, on the other hand, 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 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 essential role of the state
But this power to oversee administration of religious bodies was seen as an incident of sovereignty long before the Constitution came into force. In his 1918 treatise, The Law Relating to Hindu and Mohammedan Religious Endowments, 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.
To be sure, that this was once the case does not by itself suggest that state control over religious institutions must now continue. But the circumstances that existed in the 1920s, when the government of Madras enacted its first endowment law, have not substantially changed. The provincial administration of the time introduced the law because it found that the colonial regime, in ceding regulatory authority over temples, had paved the path for a division of power in which powerful castes and communities within the Hindu fold appropriated control over religious institutions. 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 a 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. 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. The consequence of such action will be precisely what the Constituent Assembly strived to avoid: a reassertion of social power by dominant groups.
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 management of properties dedicated for religious purposes under Muslim law. It is possible to argue that this legislation does not go far enough, as Justice S.A. Kader, a former judge of the Madras High Court has in his book, The Law of Wakfs . 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. Perhaps a time will come for such laws.
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. No doubt there might be deficiencies in how the statute is applied today. For this reason, we must constantly demand transparency and hold the state responsible to the administrative standards prescribed under the law. But a call to do anything more is to risk the abandoning of the promises that underpin the Constitution.
Suhrith Parthasarathy is an advocate practising at the Madras High Court