To uphold secularism, free temples from state control

It has been Indian secularism’s biggest defect that our Constitution, which promises to be fundamentally secular, has multiple provisions specifying exactly how religious institutions should run. A government that has its eye on the wealth of temples must also have the intellectual honesty to not maintain that it’s a secular government. Yet of this failure, every single Indian government of the past, and the present, is culpable.

To argue that within the praakaaras of Hindu temple are layers of secular functions, which are intertwined and which necessitate the state’s overarching intervention, is illogical. Such a schema is inherently faulty. If monies to temples come through hundi offerings by the Hindu devout, the government can’t argue that since a temple also has secular dimensions, its control is kosher. This is a virus inside our collective thinking, a shibboleth serving the agenda of populist leaders.

Legally, what is a temple? A temple is not “an establishment” under the Shops and Establishments Act.

In accordance with Article 25 of the Constitution, which guarantees to all persons: “freedom of conscience and the right to freely profess, practise and propagate religion”, the proviso, which is also part of the original Constitution, that the guarantee does not prevent the state from making a law “regulating” or restricting any “economic, financial, political or other secular activity” which may be associated with religious practice was a red herring.

Would the “privatisation” or “liberalisation”, to apply a phrase implying reverting of ownership and control from the state to the people in economics, of Hindu temples necessarily lead to their better management? Would it assure these endowments are administered in a manner that guarantees safeguarding of the basic civil rights of the various different followers of the Hindu religion?

The state’s argument that its intervention in Hindu endowments and trusts is not aimed at deforming religion out of existence, but rather at ensuring that the administration of endowments stays true to both the will and intent of the grantor and of India’s secular ideals, is clearly flawed. In theocratic states like the Vatican, Saudi Arabia, Yemen, the state is founded on a stated belief that a nation will be ruled directly by God’s will, or indirectly through God’s priests or theologically defined representatives. Religion, therefore, would have to have a stated, defined non-role in a secular system.

The Article 25, which envisages preventing the state from making any laws which restrict it, also empowers people’s will to be really “free” to practise or profess whichever religion they believe in (or not in the case of atheists and agnostics). But the history of Hindu temples and religious institutions being supervised, controlled or regulated started emphatically way back in 1929. As the Hindu Dharma Acharya Sabha said recently, “Traditionally, a temple was at the centre of community life and was not just a place of worship. Education, art, sculpture, architecture, music, poetry, literature, agriculture and even the local judiciary were all promoted and sustained by a temple. We have several inscriptional evidences of such institutions. In the last nine decades, the government has taken control of almost all institutions around temples which have been systematically destroyed because none of such institutions exist today.”

Those who speak of cultural invasion by the West, too, miss the point as to how the Indian arts lost their principal patron in the autonomous Indian temple. Aren’t agricultural lands belonging to temples all too easily becoming governmental properties?

Historically, the Madras Hindu Religious and Charitable Endowments Act, XIX, of 1951 was enacted signaling green pastures for governments not only to flex muscle but also brazenly control temples, and by implication, all their religious activities.

The Madras enactment did not pass judicial review. Notwithstanding the high court and, subsequently, the Supreme Court (seven-judge bench, Shirur Mutt case) ruling several sections of the law to be unconstitutional, another one was enacted in 1959, which reproduced these sections. The amended Act was again struck down by the Madras high court.

The Madras Acts served as inspiration and guide for more than a dozen laws passed by the Tamil Nadu government as well as by neighbouring states. It included the 1959 law of Andhra Pradesh. Tamil Nadu thus has the dubious distinction of pioneering the Hindu Religious and Endowments Acts, and controls directly through government servants around 43,000 temples and endowments, acquired illegally. It is a fact reiterated repeatedly by the courts.

Moreover, a majority of over 100,000 temples in the neighbouring states of Andhra Pradesh, Karnataka, Telangana and Puducherry are also under direct control of the state. Over 19,000 important temples are directly “managed” by government officials, in the absence of temple trustees from among Hindu society.

In recent years, the state control has extended to temples across India. Article 26 grants certain fundamental rights to religious denominations. The first test of what constitutes a “denomination” was decided by a sevenjudge bench in 1954 in the Shirur Mutt case. This contentious issue has gone through prolonged legal gaze and scrutiny.

The liberal black robe has gone to an extent of declaring that the seva puja for Lord Jagannath has both a religious and a secular aspect, and the state was justified in regulating the secular aspect. The appointment of priests is accepted to be a secular function, despite their performing an essentially religious duty.

This logic was taken to its extreme conclusions by the Supreme Court when it was held that management of a temple is, in fact, a secular function.

By holding succession a secular matter, the state has now become the appointer of a religious head of any Hindu institution. Resultantly, courts now determine if a matter related to a Hindu institution is religious or not. Would they be equally at ease doing so for other religions?

At a time when state roles in spheres like railways, airways, ports and banks are being privatised, and governments are claiming to be spokespersons of Hindu dharma, this is an issue that calls for attention. The state needs to hand over control of temples back to the Hindus.

The liberal black robe has gone to an extent of declaring that the seva puja for Lord Jagannath has both a religious and a secular aspect, and the state was justified in regulating the secular aspect

The writer is a senior counsel of the Telangana high court