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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

CONSTITUTIONAL VALIDITY OF HINDU RELIGIOUS & CHARITABLE ENDOWNMENTS (HR&CE) ACT

INTRODUCTION

India is a country which is governed by a written constitution. The majority population of the Indian Subcontinent, according to the Census report of 2011, is the Hindu Religion. Hindu religion encompasses itself in several/castes/subcastes of different shape andcolour. They follow various practices and traditions which vary from one another. Around 1840, the British Government started giving up the administration of temples and handed some of the important temples and endowments to some prominent mutts in Tamil Nadu. 

Some important temples came under the complete ownership and administration of these Mutts and they were able to run them efficiently and ably. Apart from these temples, there were thousands of temples which were handed over to the trustees with the then government paying very less attention to them. In 1925, the Madras Hindu Religious Endowments Act 1923, was passed for better governance and administration of certain endowments. The Act was challenged and consequently, various amendments were made to it. Later the Hindu Religious and Charitable Endowments Act,1951 came into being and was repealed as it was held unconstitutional after a which a new Hindu Religious and Charitable Endowments (HR&CE) Act, 1959 came into force.

 OBJECTIVE OF THE ACT

Earlier, temples were of great social importance, where they became centres of promotion and patronage of art and architecture, and other fine arts. Countless assets were majorly contributed by various kings and zamindars of those times who gave to the temple and deity enormous amounts of various movable and immovable property. Slowly mismanagement and discrepancies began to intervene in the temple administration for the personal benefits of people with an ulterior motive which led to the intervention of the Government to the administration of religious institutions.The HR&CE Act was enacted for better administration, protection and preservation of temples and the endowed properties attached thereto. It was also established for the fulfilment of the objects, with reasonable restrictions, which to the maximum extent do not violate the rights of religious freedom guaranteed by the constitution.

CONSTITUTIONAL VALIDITY OF THE ACT:

The Constitution of India is the foremost and basic source for the laws in our country. One of the most important provisions under the Constitution is Fundamental Rights conferred under Part III. Articles 14,19,21 are vital among them. The HR&CE Act and its provisions violate Articles 14, 25 &26 through its functioning and its provisions. Article 14 is the right to equality which prohibits discrimination. It also prohibits an arbitrary, unreasonable Act on the part of the state. Equality and equal protection before the law is available to all citizens of the country. There cannot be any discrimination by the state and these principles are well settled. The constitution necessitates that there shall not be any state religion and that the state shall treat all religions equally. When the state is not allowed to treat religions differently, the Government’s intervention in managing the affairs of only Hindu temples on the object of providing better the administration is violative of Article 14 of the Constitution.

Though there is a separate Board for some religions, there is no uniformity in treating religions equally. This is a big question posed and it makes it more unconstitutional. In the case of Moseb Kaba Chowdhary & Anr. v. State of West Bengal,[1] which deals with Article 14 of the Constitution of India, The Supreme Court has ruled that: It is well established by the decisions of Supreme Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure. Thus, it is well seen that equality in treating equals the same is absent in regard to this act. Article 25,26 & 29 deals with the freedom of religion and the rights to manage religious affairs. It guarantees rights to the religious denomination in this country, the freedom to profess, practice and propagate their religion. The freedom guaranteed by these Articles applies to all persons (Article 29) and all religious denominations or sections thereof (Article 26).

·     Article 25 gives the freedom of religion to all citizens. Art. 25(2)(a) clearly states that the State may make laws to “regulate and restrict” activities. The word regulate does not have a definite meaning but in general, it means, to direct; to direct by rule or restriction; to direct or manage according to the certain standards, to restrain or restrict. This shows that the government or the HR&CE board does not have the right to administer the institutions but only to regulate and restrict.

·    Even if the management of a temple is taken over to remedy the evil, the management must be handed over to the person concerned immediately after the evil stands remedied. Continuation thereafter would tantamount to usurpation of their proprietary rights or violation of the fundamental rights guaranteed by the Constitution in favour of the persons deprived.

·    Therefore, taking over the management in such circumstances must be for a limited period. Thus, such expropriation order requires to be considered strictly as it infringes the fundamental rights of the citizens and would amount to divesting them of their legitimate rights to manage and administer the temple for an indefinite period. [2]

·    Article 26 provides rights to religious denominations to manage the administration, their ceremonies, etc in the way it is to be done.

·     The basic right of administration lies with the temple where they decide the type of ritual, procedures for doing them, etc. The HR&CE board can only regulate them but not intervene in the work nor take away all the rights from them from the practices of religion. If that is curtailed it will infringe the rights of crores of Indians which are granted to them under Art. 25 and will run directly contrary to the secular objectives of the Preamble to the Constitution.

Right to administer property owned by denomination

·   Under clauses (c) and (d) of Art. 26 a religious denomination has the right to acquire and own property and to administer such property in accordance with the law. The right to administer property owned by a religious denomination is a limited right, and it is subject to the regulatory power of the State in clause (2) (a) of Art 25.

·       It is to be noted that the rights under clauses (c) and (d) of Art 26, are confined to the existing rights to administer its property which the religious denomination already holds. The right to administer its property by a religious denomination cannot be destroyed or taken away completely. It can only be regulated by law with a view to improving the administration of property for the better utilization of the endowment property. Thus the law must leave the right of administration of the property to the religious denomination itself subject to such restrictions.

·       To discuss ‘Secularism’ seems to be highly pertinent at this moment given the fact that our country is now witnessing various issue apparently based on religion.

·       A state cannot have its own religion and should not treat the religions differently. But the HR&CE The act does not follow this rule. The state in the case of this Act has only created provisions for the Hindu temples but not any other religion or place of worship. This is a clear violation of the concept of secularism.

FLAWS IN THE SYSTEM

·       The state in many cases has shown differences in treating a religion. The HR&CE board has taken up under its cover, only a few majority temples. Many public temples that hold great history and traditions have been completely ignored. To speak of the reality, the Board has only taken up those temples whose revenue in general is high and has not attended to the temples in dilapidated conditions. Further, the HR & CE Board has not taken any action on the temple properties which are currently enjoyed by vested interests. This shows the callous attitude of the Board which has led to many poorly maintained temples.

·        There are many instances where the temples interfere too much into the religious practices of the temples which lead to problems between the religious denominations and the board.

·      Many temples also contend that they have a good administration over the temple even without the regulations given by the HR&CE board.  Therefore, the Government cannot in the guise of better administration takeover even the best administered temple for the purpose of managing the temple without justification. That would be certainly, a rightly argued, in violation of Article 26(b) of the Constitution.[3]

CONCLUSION

The Hindu Religious and Charitable Endowment Act, 1959 aims to create a better administration for temples. It is a board that would facilitate the administration of the temple for the welfare of the public. Apparently, in reality very less of this objective is achieved by the Board in these years. The Shirur Mutt case[4] has held that various parts of this Act are ultra vires to the Indian Constitution It also clearly observed that while the legislature could seek to regulate the administration, it must always leave the administration to the denomination. The flaws in the functioning of this Act has made people all around the state to condemn the act as unconstitutional. If proper changes are made to the Act with regard to the powers of an Executive Officer, and the rights to regulate the institutions it could be accepted by the people. Another major flaw is its absence in various states. The Act should either be struck down in all places or be established properly everywhere. After all, a law exists for the benefit of the people and it must ultimately do justice to its purpose.

 REFERENCES:

1.     1956 AIR 536, 1956 SCR 372.

2.     https://indiankanoon.org/doc/130581093/ (Dr.Subramanian Swamy v. St of TN, 2015)

3.     Ratilal v. State of Bombay AIR 1954 SC 388

4.     1954 AIR 282, 1954 SCR 1005

The article is authored by R.Sumedha 

 

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