The legal hurdles in ‘freeing’ Hindu temples

The BJP’s call to “free Hindu temples” is logically far-fetched, practically unviable, and if heeded, will stall social reforms 

Manuraj Shunmugasundaram

In the last few years, there has been an orchestrated campaign by the BJP to “free Hindu temples” from the control of the government. Karnataka Chief Minister Basavaraj Bommai even announced that a law would be introduced in this regard. In non-BJP ruled States, the Rashtriya Swayamsevak Sangh has spearheaded legal challenges to statutes such as the Tamil Nadu Hindu Religious and Charitable Endowments (TNHR&CE) Act, 1959. Viewed from any perspective, all such efforts are on weak legal footing and constitutionally problematic.

Legislative history

One of the earliest efforts by an elected government to regulate temples can be traced back to 1927 when the Justice Party enacted the Madras Hindu Religious Endowments Act. In 1950, the Law Commission of India suggested that law be passed to check the misuse of funds and properties of temples. The TNHR&CE Act was enacted, but its constitutional validity was challenged before the Supreme Court. In the landmark Shirur Mutt case, the Court upheld the overall law, though it struck down some provisions. A revised TNHR&CE Act was legislated in 1959 and holds the field today.

In 1960, the Government of India constituted the Hindu Religious Endowments Commission chaired by Dr. C. P. Ramaswami Aiyar to enquire into matters connected with Hindu Public Religious Endowments. The Commission declared that government control over temples was essential to prevent maladministration and observed that the absence of enactments regulating administration of Hindu temples in some States led to “general apathy and consequent neglect of the institutions”. As such, both constitutional courts and expert bodies have backed government regulatory control over temple administration.

Early interventions of the Dravidian movement ensured that people belonging to backward classes were given the right to walk on the roads adjoining the Shiva temple in Vaikom and resulted in the promulgation of the Travancore Temple Entry Proclamation of 1936. In the subsequent decades, Kerala and Tamil Nadu, especially, have seen significant reforms within Hindu temples that have culminated in the appointment of persons belonging to backward classes as archakas through government action. In August 2021, the DMK made 208 appointments under which included archakas from all castes and a woman odhuvar.

Contrary to the right-wing propaganda that the Dravidian movement is ‘anti-Hindu’, the TNHR&CE Department has contributed to the development and betterment of temples. The Integrated Temple Management System digitises temple records with the objective of ensuring transparency and accountability in temple administration. Other initiatives such as setting up institutes for training archakas, converting jewellery given as donation into gold bars, providing monthly incentives to priests in nearly 13,000 temples, deploying 10,000 security guards in temples and expediting evictions in cases of land encroachments have been taken up by the Department.

The BJP’s promise

In 2021, the BJP promised to hand temples over to “a separate board comprising Hindu scholars and saints”. The premise suffers from legal, moral and practical difficulties. There is no explanation as to how temples are to be handed over from the state to a private group. This would also mean giving up public accountability and transparency as writ petitions and Right to Information applications cannot be filed. Importantly, such a move would stall social reforms that have been carried out by the state.

Much of the campaign to “free temples” feeds off the misconception that control of temples by the state is against the principle of secularism. However, the fundamentals of Indian secularism are different from those of western jurisdictions where state and church are totally separate. In India, the freedom to freely profess, practice, and propagate religion (Article 25 of the Constitution) is subject to the power of the state to make laws on the secular aspects of religion. The framers of our Constitution conferred powers to the state to exercise limited control over religious affairs by virtue of Article 25(2). Dr. B.R. Ambedkar observed that religion should not be given a “vast, expansive jurisdiction so as to cover the whole of life and to prevent the legislature from encroaching upon that field” and that the liberty we have is “to reform our social system, which is so full of inequities, so full of inequalities, discriminations and other things, which conflict with our fundamental rights.” In the following decades, the Supreme Court has held in a number of cases that the Constitution only protects practices that are essentially religious and does not preclude the power of the state to make laws on the secular, economic, political or financial aspects of religion. By virtue of such judicial precedents, governments have undertaken significant reforms. State control over temples to the extent that it does not affect essential religious practices must be regarded as an inviolable aspect of the basic structure of the Constitution.

Supreme Court has upheld laws such as the TNHR&CE Act and found them to operate within the constitutionally permissible framework of regulating the secular aspects of the Hindu religion. The framers of our Constitution emphasised the need for social reform in religion. Therefore, any effort to “free Hindu temples” can only be regarded as an attempt to redefine secularism and ultimately rewrite the fundamentals of our Constitution.

Manuraj Shunmugasundaram is Advocate at the Madras High Court and spokesperson of the Dravida Munnetra Kazhagam. This article was written with inputs from Haripriya V.

Link to the Article: https://www.thehindu.com/opinion/op-ed/a-case-for-state-control-of-hindu-temples/article66313240.ece