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JUDGMENT R. Gururajan, J.
1. Hindu temples/Trustees of temples/archaks and others of Karnataka ace before us aggrieved by the Judgment of this Court dated 9.9.2005 passed in W.P. Nos. 31937/2003 and connected matters in these appeals.
2. It is unnecessary for us to refer to the facts in each one of the cases. The State Government in terms of the powers conferred on then has chosen to enact a law by name the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 and the Rules framed thereunder. The said Act in terms of the statement of objects and reasons was enacted in the light of a longstanding public demand to bring about a uniform law to provide for the regulation of all charitable Endowments and Hindu Religious Institution in the State, which are now regulated under different enactments having local application in different parts of the State. The said Act was brought into force with effect from in terms of the notification. The Act is applicable to Hindu Religious Institution and Charitable Endowment but shall not apply to a math or temple attached thereto, to any Hindu religious institution or charitable endowment founded, organised, run or managed by Hindu religious denomination.
3. There are several chapters providing for various contingencies in the matter. Aggrieved by the said act, several teraples/trustees/arohaks etc., filed a bunch of Writ Petitions in this Court questioning the Constitutional validity of the said Act. Some of the petitioners also challenged the notification issued under the Act with regard to the governing of the temples in terms of the notification. Matter was heard by a learned Single Judge of this Court. Detailed arguments were advanced. After hearing, the learned single Judge in his order dated 9.9.2005 held that the Act is valid and constitutional. Learned Judge reserved liberty to the petitioners who are aggrieved by the inclusion in the notification to approach the authorities under the Act, if so advised. The learned Judge ruled that if any complaints are filed, the authorities are to hold enquiries with opportunity and thereafter pass orders in accordance with law. This order is challenged by the petitioners in these appeals.
4. Matter was heard on several days. Several learned Counsels appearing for the appellants argued the case from several angles of temple law. Constitutional principles were projected before us for the purpose of declaring the Act as unconstitutional in terns of the constitution.
5. Sri. A.G. Holla, learned Senior Counsel led the arguments. He was supported by Sri. S.P. Shankar, learned Senior Counsel Sri. Padubidri Raghavendra Rao, learned Senior counsel, Sri. D.L.N. Rao, learned senior counsel, Sri. Keshava Bhat, learned Counsel, Sri. Panindra, learned Counsel, Sri. Krishna Bhat, learned Counsel, Sri. Jalsatgi, learned Counsel. Sri. Ramesh, learned Counsel and others.
6. Sri. Holla, learned Senior Counsel took us through the history of temple material on record to say that the learned Judge has committed a serious error in not considering the case property in terms of Article 14 of the Constitution of India. He invites our attention to the inapplicability of this Act to Maths, Sikhs, Jains and Buddhist the present act excludes them without any justification. According to him, this would amount to a hostile discrimination in terms of Article 14 of the Constitution of India. He also took us through the Judgment of the Supreme Court to say that uniform law was emphasized by the Apex Court and in the process of uniform law, a further dissection is made in so far as the Hindu Religious/ and Institutions and temples are concerned in the case on hand by the State. He took us through Articles 25 and 26 of the Constitution of India to say that there is a violation of the rights guaranteed in the light of the various provisions of the Act. In fact, he would further argue that the Advisory committee headed by the Minister would result in political intervention and that has to be taken note of by this Court. Even with regard to the funds, learned Counsel says that it is discriminatory in character. In short, he would say that the present act is hit by Articles 14, 25 and 26 of the constitution of India. Learned Counsel further says that the burden is on the State to justify the pick and choose policy and that burden has not been discharged, according to the learned Counsel. He would complain that the learned Judge has not given the findings in terms of the material argued before him. He wants an interference.
7. Sri. Shankar, learned senior Counsel while supporting Sri. Holla, learned Sr. counsel, would further argue that the preamble of the Act would read a better provision under the Karnataka Hindu Religious institution and charitable Endowments in the state of Karnataka. However, according to him, Math, denomination temples are exempt from the coverage of the Act. He would argue that the definition of Hindu Under Section 2(16) is also discriminatory. He says that the constitution has recognized Hindus being inclusive of Jains in the case on hand. The exclusion of temple which is part of inseparable composite institution in terms of definition 2(27) are discriminatory. If the reason for excluding them be that the Act cannot be extended to them without violating the religious frame granted under Articles 25 and 26 of the Constitution of India, for the same reason, it cannot be extended to other institutions also. Sri. D.L.H. Rao, learned Senior counsel argue that the Act has no constitutional sanction in terms of various Apex Court rulings.
8. Sri. Keshava Bhat, learned Counsel supporting Sri. Holla, learned Sr. Counsel and Sri. Shankar, learned Counsel says that the right of administration in terms of Article 26(d) cannot be taken away by the Government and at the most, it can only be regulated. He would say that Sections 20, 22, 23, 24-30 and 42-49 are in violation of Article 26 of the Constitution of India.
9. Sri. Ramesh, learned Counsel says that the learned Judge has given general findings without referring to the statement of objection in the ease on hand. He says that the object of secularity cannot be achieved by depriving constitutional rights of another. In so far as rights of archaks is concerned, he would say that the senior archak is preferable than the junior archak. His argument is that the audit by the Chartered Accountant 10 more transparent and may involve less financial burden ultimately, he concludes that individual management would be better than a management by a over burdened burooraft. Sri. Jalsatgi, learned Counsel and Sri. Phanindra, learned Counsel argue for setting aside the Judgment and setting aside the notification as un Constitutional.
10. Sri. Padubidri Raghavendra Rao, learned senior Counsel says that Sections 9 to 16 occurring in Chapter in of the Act and the corresponding Rules 5 to 16 in relation to the archaks and temple servants ignoring the rights of hereditary archaks and hereditary office-holders and dislodging the same and ignoring the hereditary rights would be in violation of the provisions of the constitution. provisions of Sections 17 to 19 relating to establishment and taking into consideration o£ common pool fund providing for compulsory contribution is in the form of tax without the authority of law. He would also say that the notification issued by the Government is in violation of Articles 14 and 26 of the Constitution of India. The implementation of various provisions of the Act, according to him would result in nationalisation of religious institutions belonging to Hindus. He also says that various Rules that are framed are also in violation of Article 14 of the Constitution of India.
11. The State represented by Sri. Khureshi, while replying would argue that the state is not interfering in the religious activities of the temple and in fact, the State has taken care of staying away from any sort of interference in the observance of customs, usage, ceremony and practice of the temple and institution by way of Section 50 of the Act. The state would also justify that the maths are not Included for the purpose of coverage since, the Matadipathi who is a head of the math stands on a different footing. The State has exempted the provisions of the Act taking into consideration the status of the Matadipathy and practice of the religion. Similarly, it states that to bring maths and denomination temples would reduce the Hatadipathi to a position of servant sub-ordinate to the Government. It would say that there is no violation of Article 14 and 16 of the Constitution of India. In so far as Advisory Committee is concerned, he would say that it reflects the variety of persons in the matter. Endowment portfolio is entrusted to a Minister of Hindu religion set is the case of wakf Board, in so far as publishing the list of temples is concerned, the State refers to Section 50 for the purpose of a challenge under the Act. Coming to the hereditary rights of the Trustees, he only says that the Supreme Court has considered this case in 1996 SC 1023, The Government also argues that the Act is regulatory in nature and the present act has consolidated the law and has made one Act applicable to the temples in the entire State. The Government has taken into consideration every aspect considering the temple or religious institution in terms of the impugned Act. The exclusion of Jains, Buddiats and Sikhs from the purview of the Act is with the object of proper, efficient and effective regulation of one set of institutions consisting of about 35,000 temples within the State. A reasonable classification is one which includes all persons who are similarly situated with respect to the purpose of law. The purpose of a law may be either the elimination of a public mischief or the achievement of some positive public good. The State also contends that the scope of judicial review of and interference with such regulatory legislation is extremely limited. Regulation by law of the secular administration of religious institutions is permissible and valid. A law may even seem illogical or unjust. What is beat nay not always be discernible; the wisdom of any choice may be disputed or condemned, yet it would be free from judicial interference. He requested us to dismiss the petitions.
12. In reply, the petitioners say that maths were controlled in terms of the provisions of the earlier Act and no Court has declared it as impermissible in law. Control is permitted to certain permissible limits in respect of administration of the property. He also says in reply that if denomination temples are to be excluded than, all temples are to be excluded having regard to the principles expressed in AIR 1996 SC and 78 Kerala. With regard to Sections 17 and 19, they say that it is nothing but compulsory extraction from the temple fund for the purpose of the state authority. They would like the appeals to be allowed.
13. After hearing, we are of the view that the following points require our consideration:
1) object/History of the Act
3) Constitutional validity of the Act with reference to Articles 14, 25 and 26.
1. object/History of the Act
14. Indian Democracy is governed by a written constitution. The majority population of this sub continent are Hindus. The Hindu religion is considered to be one of the oldest religions in the world. Hindu religion encompasses Itself several castes/sub castes of different shape and different colour. The caste and sub caste also very from State to State or from region to region. The practice also varies to a large extent. The Hindu religion at best can be considered to be a case of unity in diversity. The Hindu religion is based on scriptures such as Upanishads, vedaa, Geetha etc. Hindu religion is considered to be a way of life.
Hindu religion permits worship of even inanimate objects-Ashwatha vriksha is worshipped/ Nagadevatas are worshipped/soil is worshipped/ sea is worshipped to give few examples.
15. The State of Karnataka was a unification of several parts which otherwise formed part of other states. The old Mysore area consisted of several districts which were under the control of the than Maharaja of Mysore and later under the control of the then Mysore State. Several Kannada speaking districts which were part of Bombay State got merged with the new State of Karnataka so also the Districts from the then Madras State and districts from Hyderabad State got merged to the State of Karnataka.
16. Earlier the Karnataka Religious and Charitable Institution Act, 1927 was applicable to what is known as the old Mysore area. The Madras Hindu Religious and charitable Endowment Act, 1951 despite South Canara and Coorg becoming part of the Karnataka State was still governed by the Madras Act.
17. The Bombay Public Trust Act, 1950 was applicable to the Bombay Karnataka namely Bijapur, Dharwar, Belgaum and North canara.
18. Hyderabad Endowment Regulations Act was applicable to some Districts such as Raichur, Gulbarga etc.,
19. The Coorg Temple Funds Management Act, 1956 is applicable to the Coorg area.
20. Though all these districts formed part of the new State of Mysore known as Karnataka still for the purpose of religious administration, these old laws were made applicable. There were several litigations that arose with regard to temple/mutt administration and were regulated by the above referred Acts to those disputes despite the areas falling in the State of Karnataka. The Supreme Court after noticing this state of affairs had chosen to say in AIR 1980 SC 1 reading as under in para 31:
But that is how the matter stands today. Twenty-three years have gone by since the States Reorganisation Act was passed but unhappily, no serious effort has been made by the State Legislature to Introduce any legislation-apart from two abortive attempts in 1963 and 1977- to remove the inequality between the temples and Maths situated in the South Kanara Dist. And those situated in other areas of Karnataka. inequality is so clearly writ large on the face of the impugned statute in its application to the District of South Kanara only, that it is perilously near the periphery of unconstitutionality. We have restrained ourselves from declaring the law as inapplicable to the District of South Kanara from today but we would like to make it clear that if the Karnataka Legislature does not act promptly and remove the inequality arising out of the application of the Madras Act of 1951 to the District of south Kanara only, the Act will have to suffer a serious and successful challenge in the not distant future. We do hope that the Government of Karnataka will act promptly and move an appropriate legislation, say, within a year or so. A comprehensive legislation which will apply to all temples and Maths in Karnataka, which are equally situated in the context of the levy of fee, may perhaps afford a satisfactory solution to the problem. This, however, is a tentative view-point, because we have not investigated whether the Madras Act o£ 1951, particularly Section 76(1) thereof, is a piece of hostile legislation of the kind that would involve the violation of Article 14. Facts in regard thereto may have to be explored, if and when occasion arises.
21. From the Judgment of the Supreme Court, what is clear to us is that a comprehensive legislation which will apply to all Maths and temples in the state of Karnataka may afford a satisfactory solution to the problem. Though this Judgment was rendered in 1980, the Government has chosen to frame the present uniform Act of 1997 for management and administration of Hindu Religious and Charitable Endowment in the state of Karnataka after 17 long years. The object of the Act is to make better provision for management of Hindu Religious institutions. The further object is to have a uniform law in the light of a longstanding public demand to provide for regulation of all Charitable endowment and Hindu Religious institutions in this State. It was with these two laudable objects, the State Government enacted 1997 Act and repealed all the earlier five Acts namely, 1) The Karnataka Religious and Charitable institution Act, 1927 2) The Madras Hindu Religious and Charitable Endowment Act, 1951 3) The Bombay Public Trust Act, 1950 4) Hyderabad Endowment Regulations Act 5) The Coorg Temple Funds Management Act, 1956. The history therefore reveals that the present Act is a uniform law in terms of the statement of objects providing for better Regulation of all Charitable Endowment and Hindu Religious institutions in the state.
22. The scheme of the Act can be culled out from the provisions of the Act itself. The Act extends to the whole of the State of Karnataka and it shall not apply - to a math or temple attached thereto; to any Hindu religious institution or charitable endowment founded, organised, run or managed by Hindu religious denomination. Various definitions are provided in terms of Section 2 of the Act.
'Charitable endowment' has been defined under Section 2(5) of the Act so also 'Hindu' has been defined under Section 2(16) of the Act. 'Hindu' has been defined as 'not to include a Buddhist, Jain or Sikh, Religious endowment is defined under Section 2(23) and 'Religious purpose' has bean defined Under Section 2(24).
Chapter II deals with appointment of Commissioner, Deputy Commissioner etc. An IAS officer is to be the Commissioner for Hindu religious institutions and charitable endowments. There would be Deputy Commissioner and there would be Assistant commissioner for implementing the Act. Chapter II provides for Subordinate officers and Delegation of powers.
Chapter III deals with Archaks and Temple servants. Appointment of archak, Qualifications for archaks are provided under Sections 9 and 10 of the Act. The emoluments of archaks are provided under Section 12 and the archaks can be on the Committee of management in terms of Section 11. The salary and service condition of temple servants are provided under Section 15 and mis-conduct and penalty is provided Under Section 16 of the Act.
Chapter IV deals with Common Pool Fund in terms of the statement of objects and reasons. The commissioner has to create a fund known an Common Pool Fund. It would be out of contribution made by the notified Institutions at 5% of their gross annual income arrived at after deducting the donations made as contribution to the capital, amounts realised by sale of jewels and amounts received for specified services and grants received from the state Government. The Common Pool Fund is administered by the Commissioner for the purpose mentioned in detail in Section 19 of the Act.
The Advisory Committee is available in chapter v. The Advisory committee consists of the Minister in-charge of Endowments who shall be the chairman in addition to the Commissioner and nine non official members. Disqualification of members and Functions o£ the Advisory Committee are provided Under Section 21 and 22 of the Act. A separate chapter has been provided in so far as notified Institutions. controlling authorities are provided Under Section 24 of the Act. Constitution of the Committee of Management is provided Under Section 25 of the Act, The Committee is to consists of 9 members in respect of one or more notified institutions and different authorities may be prescribed in respect of different class or classes of notified institutions. The Committee consists of pradan archak of the temple, one from among the Scheduled Castes and Scheduled Tribes; atleast five of whom, two are women, from among persons living in the vicinity of the temple. Qualification is prescribed under Sub-section 4 of Section 25 of the Act. similarly, disqualification is defined under Sub-section 5 of Section 25.
Meeting of the Committee of Management, Power to dissolve the Committee of Management, Appointment of Administrator, Filling up of casual vacancies, Alienation or Transfer of the lands or other property granted to notified institutions invalid unless authorised, Power in case of unauthorised alienation or transfer are all provided in Chapter VI.
Chapter VII deals with Budget of notified institutions, Accounts and Audit. Declared Institutions are found in Chapter VIII. It provides for a satisfactory State Government in the matter of declared institutions. A report is to be obtained Under Section 43 in the matter of mis-management in terms of the Act. A procedure of an opportunity is provided Under Section 43 and Appointment of salaried Executive Officer is provided Under Section 45 of the Act.
Chapter IX deals with powers and functions o£ Commissioner and other officers. Several powers are shown with regard to implementation of the Act in terms of the object of the Act. Appeal, Revision and execution of orders are provided under Chapter X.
Chapter XI deals with Miscellaneous.
Rules have been framed in exercise of the powers Conferred Under Section 76 of the Act.
23. The scheme of the Act, if read as a whole, would show that it does not apply to all Hindu religious institutions. The Government has chosen to enact a law for limited religious institutions. The main other features of the Act is creating a common Pool Fund/facilities to the temple staff of the Act and it also makes provision for notified institutions.
3. constitutional validity of the Act with reference to Articles 14, 25 and 26:
24. Two essential arguments are advanced before us in the matter of constitutional validity of the Act in question. The main argument is that the Act discriminates in the matter of applicability of the Act and the Act is arbitrary exercise of power. The second other argument advanced is that it violates the religious rights guaranteed in terms of Articles 25 and 26 of the constitution of India. The learned Single Judge has negatived both the conditions. Learned Judge was of the view that the Government has power to pick and choose in the matter of applicability of an Act. Learned Judge was also of the view that there is no violation of either Articles 25 or 26 of the Constitution of India. The findings of the learned Single Judge is assailed by raising several contentions in support of the invalidity of the Act in terms of Articles 14, 25 and 26 of the Constitution of India. Let us see as to whether these arguments are available to the petitioners or not in the case on hand.
Violation o£ Article 14 of the Constitution of India:
25. Article 14 prohibits discrimination. It further prohibits an arbitrary, unreasonable Act on the part of the state. Equality and equal protection is available to all citizens of the country. There can never be discrimination by the State. These principles are well settled. The petitioners essentially contend that the Act suffers from discrimination and Arbitrariness in the matter of application of the Act. The essential contention is that the exclusion of maths etc., in terms of Section 1(4) and the exclusion of Buddhists, Jains or Sikhs in terms of Section 2(16) is in violation of Article 14 of the constitution of India. Let us first see the law and the subject.
26. In 1958 SC 536 deals with Article 14 of the Constitution of India. The Supreme Court has ruled as under:
It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification £or the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (11) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like, what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also 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.
27. In AIR 1980 SC 1, the Supreme Court noticed the argument of Article 14 with regard to application of the Madras Act to South Kanara District of the State of Mysore. The Supreme Court ruled in matters arising out of reorganisation of States, continued application of laws of a state to territories, which were within that state but which have become a part of another state, is not discriminatory since the classification rests on geographical, consideration founded on historical reasons.
The supreme Court in this very Judgment in para 29 noticed the Legal Maxims "Cessante Ratione Legis Cessat Ipsa Lex" that is to say, "Reason is the soul of the law and when the reason of any particular law ceases, so does the law Itself."
The Supreme Court in that Judgment has noticed in para 31 an under:
But that is how the matter stands today. Twenty-three years have gone by since the States Reorganisation Act was passed but unhappily, no serious effort has been made by the State Legislature to introduce any legislation-apart from two abortive attempts in 1963 and 1977-to remove the inequality between the temples and Maths situated in the south Kanara Dist, and those situated in other areas of Karnataka. Inequality is so clearly writ large on the face of the impugned statute in its application to the District of South Kanara only, that it if perilously near the periphery of unconstitutionally. We have restrained ourselves from declaring the law as inapplicable to the District of south Kanara from today but we would like to make it clear that if the Karnataka Legislature does not act promptly and remove the inequality arising out of the application of the Madras Act of 1951 to the District of south Kanara only, the Act will have to suffer a serious and successful challenge in the not distant future. we do hope that the Government of Karnataka will act promptly and move an appropriate legislation, say, within a year or so. A comprehensive legislation which will apply to all temples and Maths in Karnataka, which are equally situated in the context of the levy of fee, may perhaps afford a satisfactory solution to the problem. This, however, is a tentative view-point because we have not investigated whether the Madras Act of 1951, particularly Section 76(1) thereof, is a piece of hostile legislation of the kind that would involve the violation of Article 14. Facts in regard thereto may have to be explored, if and when occasion arises.
28. In (Dr. M. Ismail Faruqui v. Union of India and Ors.), the Supreme Court says that:
moreover any step taken to arrest escalation of communal tension and to achieve communal accord and harmony can, by no stretch of argumentation, be termed non-secular much less anti-secular or against the concept of secularism a creed of the Indian people embedded in the ethos.
29. In AIR 1996 SC 1119 (Shastri Yagnapurushdasji and Ors. v. Muldas Bhundardas vaishya and Anr.), the Supreme Court considered the Bombay Hindu places of Public Worship Act and ruled as under in paras 40 and 43:
Tilak faced this complex and difficult problem of defining or, at least describing adequately Hindu religion and he evolved a working formula which may be regarded as fairly adequate and satisfactory. Said Tilak: "Acceptance of the Vedas with reverence; recognition of the fact that the means or ways to salvation are diverse; and realisation of the truth that the number of gods to be worshipped is large, that indeed is the distinguishing feature of Hindu religion (11-A). This definition brings out succinctly the broad distinctive features of Hindu religion. It is somewhat remarkable that this broad sweep of Hindu religion has been eloquently described by Toynbee. Says Toynbee: "When we pass from the plane of social practice to the plane of intellectual outlook, Hinduism too comes out well by comparison with the religions and ideologies of the south-west Asian group. In contrast to these Hinduism has the same outlook as the pre-Christian and pre-Muslim religions and philosophies of the Western half of the old world. Like them, Hinduism takes it for granted that there is more than one valid approach to truth and to salvation and that these different approaches are not only compatible with each other, but are complementary.
30. In (Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte and Ors.), the Court notices the meaning of Hindutva or Hinduism and ruled in paras 39, 40 and 44 reading as under:
No precise meaning can be ascribed to the terms 'Hindu' , 'Hindutva' and 'Hlndusira'; and no meaning in the abstract can confined it to the narrow limits of religion alone, excluding the content of Indian culture and heritage. The term 'Hindutva' is related more to the way of life of the people in the sub-continent. It is difficult to say that the term 'Hindutva' or 'Hinduism' per se, in the abstract, can be assumed to mean and be equated with narrow fundamentalist Hindu religious bigotry, or be construed to fall within the prohibition In Sub-sections (3) and/or (3A) of Section 124 of the R.P. Act. Ordinarily, Hindutva is understood as a way of life or a state of mind and it is not to be equated with, or understood as religious Hindu fundamentalism. The word 'Hindutva' is used and understood as a synonym of 'Indianlsation', i.e., development of uniform culture by obliterating the differences between all the cultures co-existing in the country.
Considering the terms ''Hinduism' or 'Hindutva' per se as depicting hostility, enmity or intolerance towards other religious faiths or professing communalism, proceeds from an improper appreciation and perception of the true meaning of these expressions. Misuse of these expressions to promote communalism cannot altar the true meaning of these terms. The mischiefs resulting from the misuse of the terms by anyone in his speech has to be checked and not its permissible use.
31. In (Pannalal Bansilal Patil and Ors. v. State of Andhra Pradesh and Anr.) deals with uniform law for all desirable one. The Supreme court in para 12 has ruled as under:
The first question is whether it is necessary that the legislature should make law uniformly applicable to all religious or charitable or public institutions and endowments established or maintained by people professing all religions. In a pluralist society like India in which people have faith in their respective religions, beliefs or tenets propounded by different religions or their off-shoots the founding fathers while making the Constitution were confronted with problems to unify and integrate people of India professing different religious faiths, born in different castes, sex or Sub-sections in the society speaking different languages and dialects in different regional and provided secular Constitution to integrate all sections of the society as a united Bharat. The directive principles of the Constitution themselves visualize diversity and attempted to foster uniformity among people of different faiths. A uniform law though is highly desirable, enactment thereof in one go perhaps may be counter-productive to unity and integrity of the nation. In a democracy governed by rule of law gradual progressive change and order should be brought about. Making law or amendment to a law is a slow process and the legislature attempts to remedy where the need is felt most acute. It would therefore, be inexpedient and incorrect to think that all laws have to be made uniformly applicable to all people in one go. The mischief or defect which is most acute can be remedied by process of law at stages.
32. The supreme Court in 1990 SC 1 has ruled that the uniform law is necessary in the administration of the religious institution belonging to Hindus. The said Judgment has already been referred to by us in the earlier paragraphs.
33. The supreme court in (Bal Patil and Anr. v. union of India and Ors.) has noticed what is secularism and how Jainism differ from Hinduism. In para 36, the Supreme court ruled, reading as under:
These concluding observations were required, after the eleven-Judges' Bench in TMA Pal Foundation case (supra) held that claims of minorities on both linguistic and religious basis would be each State as a unit. The country has already been reorganized in the year 1956 under the States Reorganisation Act on the basis of language. Differential treatments to linguistic minorities based on language within the State is understandable but if the same concept for minorities on the basis of religion is encouraged, the whole country, which is already under class and social conflicts due to various divisive forces, will further face division on the basis of religious diversities. Such claims to minority status based on religion would increase in the fond hope of various sections of people getting special protections, privileges and treatment as part of constitutional guarantee. Encouragement to such fissiparous tendencies would be a serious jolt to the secular structure of constitutional democracy. We should guard against making our country akin to a theocratic State based on multi-nationalism. Our concept of secularism, to put it in a nut-shell, is that 'State' will have no religion. The States will treat all religions and religious groups equally and with equal respect without in any manner interfering with their individual rights of religion, faith and worship.
In the very Judgment, the Supreme Court stated thus in para 30, with regard to Hinduism with that of Jainism.
Hinduism' can be called a general religion and common faith of India whereas 'Jainism' is a special religion formed on the basis of quintessence of Hindu religion. Jainism places greater emphasis on non-violence (ahimsa) and compassion (karuna). Their only difference from Hindus is that Jains do not believe in any creator like God but worship only the perfect human being whom they called Tirathankar. The Tirathankars are embodiments of perfect human beings who have achieved human excellence at mental and physical levels. In philosophical sense, Jainism is a reformist movement amongst Hindus like Brahamsamajis, Aryasamajis and Lingayats. The three main principles of Jainism are Ahimsa, Anekantvad and Aparigrah.
34. In AIR 2005 SC 3053 (M.P. Gopalakrishnan Nair and Anr. v. State of Kerala and Ors.), the Supreme Court again notices in paras 19 and 21 reading as under:
India is a secular country. Secularism has been inserted in the Preamble by reason of the Constitution 42nd amendment Act, 1976. The object of inserting the said word was to spell out expressly the high ideas of secularism and the integrity of the nation on the ground that these institutions are subjected to considerable stresses and strains and vested interests have been trying to promote their selfish ends to the great detriment of the public good. It is now well-settled:
1) The constitution prohibits the establishment of a theocratic State.
2) The Constitution is not only prohibited to establish any religion of its own but is also prohibited to identify itself with or favouring any particular religion.
3) The secularism under the Indian Constitution does not mean constitution of an atheist society but it merely means equal status of all religions without any preference in favour of or discrimination against any one of them.
35. From these caselaws, what is clear to us is that discrimination is a plea available for the purpose of Article 14 of the Constitution of India. Law is also well settled that in the event of any discrimination, it is hit by Article 14. Equals are to be treated equally and equals are not to be treated with un-equals. Equal treatment is the foundation of Article 14 of the constitution. State cannot discriminate in the matter. However, discrimination if alleged, then the State has to justify discrimination by acceptable material with acceptable reasons. Reasonable classification is permissible.
36. Let us see as to whether the principles of Article 14 in the case on hand is followed or not. Let us first sea the Act itself. The supreme Court wayback in 1980 has expressed the view that a uniform religious law is necessary for the unified Karnataka State. The statement of objects and reasons would also show that there has been a longstanding public demand to bring about a uniform law to provide for the regulation of all charitable Endowments and Hindu Religious Institutions in the State. In fact, with the laudable object of uniform religious law, five religious acts stood abolished and in its place, a new law is brought by way of replacing of several local acts to bring about uniformity in the matter of regulations, by law of the various Charitable Endowment and Hindu Religious Institutions, especially. That being the object, the State ought to have enacted a uniform law in terms of the statement of objects but in the guise of uniform religion law to the State, the State has chosen to exclude a Hath or temple attached thereto for the purpose applicability of the Act. A math is not defined under the new Act. 1927 Karnataka Religious and charitable institution Act would apply to religious charitable institution which includes endowment for carrying out all religious and charitable Endowment Act. 1927 Act defines the term 'Muzrai institution' meaning and including every Math, Temple, Mosque etc. The Act was applicable to Maths in terms of Section 24. Chapter II and III applies to maths and other institution of a similar nature.
The Madras Hindu Religious and charitable Endowments Act, 1951 would define the term 'Math' in terms of Section 2(10) of the Act. The Bombay Public Trusts Act, 1950 would also be applicable to maths. When the earlier acts were made applicable to maths and that, that the intention is to bring a uniform law for this religious institution also, it is un-understandable to us as to why the present Act is not to be made applicable to a math as has been done earlier in the case on hand. Though math may stand slightly different footing from that of a temple administration in terms of religious practice/rituals etc., but still the basic object of religion and religious activities is being carried on in Hindu maths also. Temples are controlled, governed and managed by maths in some oases. No valid and acceptable reasons are forthcoming for exclusion in terms of the Act either by way of objection statement or by way of arguments.
37. However, the State would say in the written arguments that the object/principles of the Act is to enact a new law in place of several local acts to bring about uniformity in the matter of various charitable and Hindu Religious institutions but not all the institution uniformly in one stretch. We are unable to accept the arguments, particularly in the light of the statement of objects and reasons in terms of the Act. The statement of objects clearly states that uniform law is provided in the light of a longstanding public demand and for this reason, the earlier acts ware abolished. The present act totally exempts the Maths from the acts in the light of the repeal of the earlier local acts as applicable to the maths and in the absence and in the light of in-applicability of the present Act. Therefore, the argument of uniform stretch is only an argument that requires to be noticed for the purpose of rejection. This argument in the light of the statement of objects would show that the said argument runs counter to the intention of the legislation. Even otherwise, the State has to justify its act in exclusion which was included in the earlier local acts. Reasonable classification is permissible but the State has to satisfy the classification being reasonable in the case on hand. At the cost of the repetition, we would say that a set of religious institutions which were otherwise governed by the earlier local acts, now stands totally excluded and no law governs these maths. The laudable object of better management and administration of religious institution is not taken care of in the matter of math administration. The Court cannot but notice that in these days of commercialization, the Government has to step in, in the event of any mis-management financially or otherwise of any math and to protect the money of the math by way of legislation within the four corners of the Constitution in the larger interest of temple/math money. There are instances of litigations pertaining to succession to the Peetha, religious practices, etc., either at the instance of the math or against the math. There are instances of virtual heritage principle being followed in appointment of Matadlpathis. Discipline do arise in such cases. Devotees have to have a say in such matters in the larger interest of the math discipline. We must say that several maths of Hindu religions are certainly rendering yeoman service apart from Hindu religious activities to the needy, poor people toy way of several welfare measures voluntarily by way of providing free food, free education etc. Their contribution to the society cannot be under estimated. But at the same time, the Court cannot shut its eyes that some regulatory measure is necessary, particularly in the light of the history of applicability of the regulatory measures in terms of the earlier Statutes to these maths earlier as well. Government in terms of the arguments and in terms of the material has not placed any acceptable material before us to justify its action of exclusion particularly in the light of inclusion of the same in terms of the earlier local acts. Learned Single Judge in our view has rejected the theory of discrimination by way of a right to the state by way of pick and choose. Pick and choose is permissible provided the pick and choose is shown to be reasonable and justifiable. So long the pick and choose, smell arbitrariness, then the Court has to step in to prevent such pick and choose arbitrary manner in the matter of better administration. Moreover, the exclusion has to have some rational nexus in terms of the laws governing the applicability of Article 14 of the Constitution of India. The exclusion has to achieve the object of the Act for the purpose of saving from Article 14 of the constitution of India in terms of the law laid down by the Apex court. In the case on hand, the object of the Act is to have a uniform religious laws and exclusion would result in not providing a uniform law in terms of the object of the Act. We therefore deem it proper to accept the arguments of the petitioners that the exclusion of the maths, in our view would be in violation of Article 14 of the Constitution of India. In fact, we must once again recall the Judgment of the Supreme Court in 1980 SC with regard to uniform law for all Hindu religious institution. Incidentally that was a case of a math that arose from this state.
38. It is also seen that the Act is not applied to Hindu Religious institution or charitable Endowment founded, organised, run or managed by Hindu religious denomination. Religious denomination temples do not in any way stands on a different footing than the other Hindu temples. In fact, this Court had an occasion to consider the denomination temples on an earlier occasion. In K. Mukundaraya Bhenoy v. The State of Mysore in 1959 Mys.LJ 709, the court has considered the right of administration of a religious denomination temple. The Court ruled in that case that a law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under Article 26 of the Constitution of India. In the subsequent Judgment reported in 1970 (1) MLJ 170, the Court considered the question of Hindu public temples. The Court noticed Mukundarya Shenoy's case and after noticing, a Division Bench of this Court has ruled that the Hindus in the larger sense, including all sections of Hindus constitute a religious denomination within the meaning of Articles 21 and 26 of the Constitution of India. This Judgment would show that in the matter of temple administration, the state cannot discriminate between Hindu Religious denomination Visa-vis, the Hindu temple. The inapplicability to the Hindu religious institution by Hindu Religious denomination is also hit by Article 14 of the constitution of India. State has failed in its duty to justify its exclusion on the facts of this case.
39. One other issue that was seriously agitated was with regard to the definition of a 'Hindu' in terms of Section 2(16) of the definition. This Act is called Karnataka Hindu Religious Institution and Charitable Endowment Act of 1997. 'Hindu' has been defined not to include a Buddhist, Jain or Sikh. The Hindu philosophy believe in 'Vasudeva Kutumbakam'. The constitution recognises right to freedom of religion in terms of Article 25 of the Constitution. Article 25(2)(b) of the Constitution would provide that nothing in this article shall affect the operation of any existing law or prevent the State from mating any law providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation II would say that in Sub-clause (b) of Clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jains or Buddhist religion and the reference to Hindu religious institutions shall be construed accordingly. Constitution has recognized, the Sikh, Jain, Buddhist forming pat of Hindu and their institution are also construed to be as Hindu religious institution. Even the personal laws in terms of Hindu law of succession, Hindu succession Act, Hindu adoption and maintenance etc., would not exclude Jaina, Sikhs and Buddhists and on the other hand, the Hindu personal laws are equally made applicable to Jains, Sikhs and Buddhists. The history and the constitution would show that Jains, Sikhs and Buddhists all form part of Hindus. Courts have also considered the Jains visa-vis Hindus.
40. At this stage, WE must again reiterate that Jains, Sikhs were also governed by the earlier local acts as Hindus and now they have been totally excluded while framing a uniform law in terms of the impugned legislation. Learned Single Judge, in our view has not properly appreciated the impact of Article 14 in the matter of exclusion of Sikhs, Jains etc., for the purpose of Article 14 of the Constitution. The State would say that in terms of the Bihar Hindu Religious Trust Act, Sikhs were excluded and the same was questioned before the Supreme Court. The Supreme Court ruled in AIR 1959 SC 942 as under:
The decisions of this Court further establish that there is a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional guarantee; that it must be presumed that the legislature understands and correctly appreciates the needs of its own people and that its laws are directed to problems made manifest by experience and that its discrimination are based on adequate grounds---therefore, according to the well established principles laid down by this Court with regard to legislative classification, it was open to the Bihar Legislature to exclude Sikhs who might have been in no need of protection and to distinguish between Hindus and Jains. Therefore, the contention urged on behalf of the appellants that the several provisions of the Act contravene Article 14 is devoid of any merit.
This Judgment is not available to the State. In that case, the Court noticed that Section 8 of the Act recognises the difference in the matter. Even otherwise, the court noticed that there are not many Sikh religious Trust in Bihar and there organisation is essentially different. The Court also notices that the case involves one of religious trust. After noticing all these factual aspects of the matter, the Court accepted the in-applicability of Article 14. The present set of facts stands on different footing. In this case, no material is placed for justification and apart from that the Jains, sikhs and Buddhists were also governed by the earlier provisions of the earlier Act as Hindus. That makes all the difference between the reported case and the present case.
41. In 1963 SC 1638 (Shri Govindlalji v. State of Rajasthan), the Supreme Court ruled as under:
What is protected under Article 25(1) and 26(b) respectively are the religious practices and the right to manage affairs in matters of religion. If the practice in question is purely secular or the affairs which is controlled by the statute is essentially and absolutely secular in character, it cannot be urged that Article 25(1) or Article 25(b) has been contravened. Though the task of disengaging the secular from the religious may not be easy, it must nevertheless toe attempted in dealing with the claims for protection under Article 25(1) and 26(b).
42. A Full Bench of the Kerala High Court in AIR 1978 Kerala 68 (T. Krishnan v. G.D.M. Committee) has ruled in paras 35 and 36 as under:
A religious sect or denomination has the undoubted right guaranteed by the Constitution to manage its own affairs in matters of religion and this Includes the right to spend the trust property or its income for the religious purposes and objects indicated by the founder of the trust or established by the usage obtaining in a particular institution. To divert the trust properties or funds for purposes which a statutory authority or official or even a court considers expedient or proper although the original objects of the founder can still be carried out, is an unwarrantable encroachment on the freedom of religious institutions in regard to the management of their religious affairs. A statute cannot therefore empower any secular authority to divert the trust money for purposes other than those for which the trust was created as that would constitute a violation of the right which a religious denomination has under Articles 25 and 26 of the Constitution to practice its religion and to Manage its own affairs in matters of religion. The State can step in only when the trust fails or is incapable of being carried out either in whole or in part.
36. The real purpose and intendment of Articles 25 and 26 is to guarantee especially to the religious minorities in this country the freedom to profess, practice and propagate their religion to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to own and acquire properties and to administer such properties in accordance with law subject only to the limitations and restrictions indicated in those Articles. No doubt, the freedom guaranteed by these two Articles applies not merely to religious minorities but to all persons (Article 29) and all religious denominations or sections thereof (Article 26). But in interpreting the scope and content of the guarantee contained in the two Articles the Court will always have to keep in mind the real purpose underlying the incorporation of these provisions in the fundamental rights Chapter.
When a challenge is raised before a Court against the validity of any statute as contravening the fundamental rights guaranteed under Articles 25 and 26 it is from the above perspective that the court will approach the question and the tests to be applied for adjudging the validity of the statute will be the same irrespective of whether the person or denomination complaining about the infringement of the said fundamental right belongs to a religious minority or not.
43. State relies on 1974 SC 656. Apex court in that case after noticing the local conditions ruled that a classification on local condition is permissible. Hence, that Judgment is not available to the State in the case on hand. State however placed arguments that there are certain differences in practice and rituals amongst Jains, Buddhist and Sikhs visa-vis Hindus and hence exclusion of Jains, Buddhist and Sikhs is permissible in law. This argument or the state is required to be noticed for rejection. For that matter, even among Hindus, there are several castes and sub-castes and those castes and sub-castes follow different practice and different rituals depending on the locality or the place. In fact, at this stage, we must also notice that there is no request also from Jains, Sikhs etc., to exclude them on the ground of differences, if at all as sought to be argued before us. State cannot justify this exclusion in this manner without any foundation, what so ever. He cannot but observe that Hindu religion is already divided by way of castes and sub-castes. Now the State also wants to divide Hindus by excluding Jains, Sikhs in terms of a Statute. At this stage, it if necessary to notice what the Supreme Court had said in the Judgment in 2005 SC 3172. The supreme court has ruled that "Differential treatments to linguistic minorities based on language within the state is understandable but if the same concept for minorities on the basis of religion is encouraged, the whole country, which is already under class and social conflicts due to various divisive forces, will further face division on the basis of religious diversities." Therefore, we have no hesitation in holding that on this ground also, the Act Buffers from violation of Article 14 of the Constitution of India.
44. Learned single Judge has chosen to reject this ground only on the principle Judicial review. Judicial review always would include consideration of exclusion by way of discriminatory matter in violation of Article 14 of the Constitution of India. Therefore, we are unable to accept the findings of the learned judge that on the principle of judicial review, the courts cannot go into discrimination in a given circumstances with reference to Article 14 of the Constitution of India.
Violation of Articles 25 and 26 of the constitution of India:
45. Elaborate arguments were advanced with reference to Articles 25 and 26 of the constitution of India. several provisions were brought to our attention for the purpose of this contention in the matter of violation of Articles 25 and 26 of the Constitution of India. We have already culled out in the earlier paragraphs the scheme of the Act. There are 11 chapters and 79 sections in the Act.
Chapter III deals with the appointment of Arohakas and Temple servants, emoluments, salary etc., Common Pool fund is created in terms of Chapter IV. Advisory Committee is constituted in terms of chapter V.
Notifying institutions are referred in Chapter VII and declared institutions are suggested in Chapter VIII.
Powers of the Commissioner are shown in chapter IX.
46. Petitioners essentially argue that the archaks and temple servants are now put to some restrictions in terms of the service condition and that would affect their hereditary/religious rights. The Supreme Court has considered this very issue in AIR 1996 SC 1765. The Supreme Court has ruled that abolition of hereditary right to appointment is not violative of Articles 25 and 26 of the Constitution of India. It has further ruled that hereditary right to appointment is not essential part of religion or matter of religion or religious practice. Of course, this Judgment has been subsequently notice in 2004(4) SCC 661 and the Supreme Court has chosen to refer to a larger Bench. Prima facie, law as on today in terms of 1996 SC 1765 Judgment is against archaks.
47. In so far as the common Pool Fund is concerned, arguments are advanced that it interferes with the administration of the temple. Similarly, in respect of Advisory Committee, it is contended that the appointment of the Minister as chairman would result in politicisation of temple affairs. in so far as notified Institution is concerned, they would argue that arbitrary inclusion would be made by the State. Similar arguments are advanced with regard to declared institution.
Article 25 provides for Freedom of conscience and free profession, practice and propagation of religion.
Article 26 deals with Freedom to manage religious affairs.
48. Learned Judge in the impugned order has chosen to hold that the provision under the Act are all relating to economy and social activities and not violative of Articles 25 and 26 of the Constitution of India.
49. Let us first see the law laid down by the Apex court in the matter of Articles 25 and 26 of the Constitution of India. Article 25 is considered by various Courts of the law.
50. The supreme Court has ruled in (Bal Patil and Anr. v. union of India) that the State has no religion and State has to treat all religions and religious people equally and with equal respect without in any manner interfering with their Individual rights of religion, faith and worship.
The supreme court has considered the distinctive features of Hindu religion in reading as under:
33. The next contention realtes to the meaning of 'Hindutva' and Hinduism and the effect of the use of these expressions in the election speeches.
34. In short, mere use of the word 'Hindutva' or 'Hinduism' or mention of any other religion in an election speech does not bring it within the net of Sub-section (3) and/or Sub-section (3A) of Section 123, unless the further elements indicated are also present in that speech, it is also necessary to see that meaning and purport of the speech and the manner in which It was likely to be understood by the audience to which the speech was addressed. These words are not to be construed in the abstract, when used in an election speech.
37. In a later Constitution Bench decision in Commissioner of Wealth tax, Madras v. late R sridharan by LRs., (1976) Supp SCR 478, the meaning of the term 'Hinduism' as commonly understood is stated thus:
... It is a matter o£ common knowledge, that Hinduism embraces within self so many diverse forms of beliefs, faiths, practices and worship that it is difficult to define the term 'Hindu' with precision.
The histrical and etymological genesis of the word 'Hindu' has been succinctly explained by Gajendragadkar, C.J in Shastri Yagnapurushdasji v. Nuldas Bhudardas vaishya .
In unabridged Edition of Webster's Third New International Dicitionary of the English language, the term 'Hinduism' has been defined as meaning "a complex body of social, cultural and religious beliefs and practices evolved in and largely confined to the Indian subcontinent and marked by a caste system, an outlook tending to view all forms and theories as aspects of one external being and truth, a belief in ahimsa, karma, dharma, sansara and moksha, and the practice of the way of works, the way of knowledge, or the way of devotion as the means of release from the bound of rebirths; the way of life and form of thought of a Hindu.
In encyclopaedia Britannica (15th edition), the term 'Hindusim' has been defined as meaning "the civilisation of Hindus (originally, the inhabitants of the land of the Indus River). It properly denotes the Indian civilization of approximately the last 2,000 years. which gradually evolved from Vedism, the religion of the ancient Indo-European who settled in India in the last centuries of the 2nd millennium BC. Because it integrates a large variety of heterogeneous elements, Hinduism constitutes a very complex but largely continuous whole, and since it covers the whole of life, it has religious social, economic literary, and artistic aspects. As a religion, Hinduism is an utterly diverse conglomerate of doctrines, cults, and way of life....In principle, Hinduism incorporates all forms of belief and worship without necessitating the selection or elimination of any. The Hindu is inclined to reverse the divine in every manifestation, whatever it may be, and is doctrinally tolerant, leaving others including both Hindu and non-Hindus - whatever creed and worships practices suit then best. A Hindu may embrace a non-Hindu religion without ceasing to be Hindu, and since the Hindu is disposed to think synthetically and to regard other forms of worship, stange gods, and divergent doctrines as inadequate rather than wrong or objectionable, he tends to believe that the highest divine powers complement each other for the well-being of the world and mankind. Few religious ideas are considered to be finally irreconcilable. The core of religion does not even depend on the existence or non-existence of God or on whether there is one god or many. Since religious truth is said to transcend all verbal definition, it is not conceived in dogmatic terns. Hinduism is then both a civilisation and a conglomerate of religions with neither a beginning, a founder, nor a central authority, hierarchy, or organisation. Every attempt at a specific definition of Hinduism has proved unsatisfactory in one way or another, the more so because the finest Indian scholars of Hinduism, including Hindus themselves, have emphasised different aspects of the whole.
51. In (Commissioner H.R.C.S. v. L.T. Swamiar), the Supreme court ruled as under in paras 14, 17:
14. We now come to Article 25 which, as its language indicates, secures to every person, subject to public order, health and morality, a freedom not only to entertain such religious belief, as nay be approved of by his judgment and conscience, but also to exhibit his belief in such outward acts as he thinks proper and to propagate or disseminate his ideas for the edification of others. A question is raised as to whether the word "persons" here means individuals only or includes corporate bodies as well. The question, in our opinion, is not at all relevant for our present purpose.
A Mathadhipati is certainly not a corporate body; he is the head of a spiritual fraternity and by virtue of his office has to perform the duties of a religious teacher. It is his duty to practice and propagate the religious tenets, of which he is an adherent and if any provision of law prevents him from propagating his doctrines, that would certainly affect the religious freedom which is guaranteed to very person under Article 25. Institutions, as such cannot practise or propagate religion; it can be done only by individual persons and whether these persons propagate their personal views or the tenets for which the institution stands is really immaterial for purposes of Article 25. It is the propagation of belief that is protected, no matter whether the propagation takes place in a church or monastery, or in a temple or parlour meeting.
17. It will be seen that besides the right to manage its own affairs in matters of religion, which is given by Clause (b), the next two clauses of Article 26 guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law. the administration of its property by a religious denomination has thus been placed, on a different footing from the right to manage its own affairs in matters of religion. The latter is a fundamental right which no Legislature can take away, whereas the former can be regulated by laws which the Legislature can validly impose. It is clear, therefore, that questions merely relating to administrator, institution are not matters of religion to which Clause (b) of the Article applies.
What Article 25(2)(a) contemplates is not regulation by the station of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to public order, health and morality but regulation of activities which are economic, commercial or political in their character though they are associated with religious practices.
52. In (Ratilal v. State of Bombay), the supreme Court has ruled as under in para 11:
The language of this two Clause (b) and (d) of Article 26 would at once bring out the difference between the two. In regard to affairs in matters of religion, the right of management given to a religious body, is a guaranteed fundamental right which no legislation can take away, on the other hand, as regards administration of property which a religious denomination is entitled to own and acquire, It has undoubtedly the right to administer such property but only in accordance with law. This means that the State can regulate the administration of trust properties by means of laws validly enacted; but here again it should be remembered that under Article 26(d), it is the religious denomination itself which has been given the right to administer its property in accordance with any law which the state may validly impose. A law, which takes away the right of administration altogether from the religious denomination and vests it in any other or secular authority, would amount to violation of the right which is guaranteed by Article 26(d) of the Constitution.
53. In (Venkataramana Devaru v. State of Mysore), the Court ruled in para 28 as under:
28 And lastly, it is argued that whereas Article 25 deals with the rights of individuals, Article 26 protects the rights of denominations, and that as what the appellants claim is the right of the Gowda Saraswath Brahmins to exclude those who do not belong to that denomination, that would remain unaffected by Article 25(2)(b). This contention ignores the true nature of the right conferred by Article 25(2)(b). that, is a right conferred on "all classes and sections of Hindus" to enter into a public temple, and on the unqualified terms of that Article, that right must be available, whether it is sought to be exercised against an individual under Article 25(1) or against a denomination under Article 26(b). The fact is that though Article 25(1) deals with rights of individuals, Article 25(2) is much wider in its contents and has reference to the rights of communities and controls both Article 25(1) and Article 26(b).
54. In 1997 (4) SC 124 (A.V.K.V. Temple v. State of Uttar Pradesh), the Supreme Court ruled as under:
The religious freedom guaranteed by Articles 25 and 26, therefore, is intended to be a guide to a community life and ordain every religion to act according to its cultural and social demands to establish an egalitarian social order. Articles 25 and 26, therefore, strike a balance between rigidity of right to religious belief and faith and their intrinsic restrictions in matters of religion, religious beliefs and religious practices and guaranteed freedom of conscience to commune with his Cosmos/Creator and realise his spiritual self.
It is not every aspect of the religion that requires protection of Articles 25 and 26 nor has the Constitution provided that every religious activity would not be interfered with. Every mundane and human activity is not intended to be protected under the Constitution in the garb of religion. Articles 25 and 26 must be viewed with pragmatism. By the very nature of things it would be extremely difficult, if not impossible, to define the expression "religion" or "matters of religion" or "religious beliefs or practice". Right to religion guaranteed by Articles 25 and 26 is not absolute or unfettered right to propagate religion which is subject to legislation by the State limiting or regulating every non-religious activity. The right to observe and practice rituals and right to manage in matters of religion are protected under these Articles. But right to manage the Temple or endowments is not integral to religion or religious practice or religion as such which is amenable to statutory control. These secular activities are subject to State regulation but the religion and religious practices which are integral part of religion are protected. It is well settled law that administration, management and governance of the religious institution or endowment are secular activities and the State could regulate then by appropriate legislation.
33. In (N. Adithayan v. Travaneora Devaswom Board), the supreme Court ruled in paras 17 and 18 reading as under:
Where a temple has been constructed and consecrated as per Agamas, it is considered, necessary to perform the daily rituals, poojas and recitations as required to maintain the sanctity of the idol and it is not that in respect of any and every temple any such uniform rigour of rituals can be sought to be enforced, dahors its origin, the manner of construction or method of consecration. No doubt only a qualified person well versed and properly trained for the purpose alone can perform poojas in the temple since he has not only to enter into the sanctum sanctorum but also touch the idol installed therein. it therefore goes without saying that what is required and expected of one to perform the ritual and conduct poojas is to know the rituals to be performed and mantras, as necessary, to be recited for the particular deity and the method of worship ordained or fixed therefor. If traditionally or conventionally, in any temple, all along a Brahman alone was conducting poojas or performing the job of Santhikaran, it may not be because a person other than the Brahman is prohibited from doing so because he is not a Brahman, but those others were not in a position and, as a matter of fact, were prohibited from learning, reciting or mastering Vedic literature, rites or performance of rituals and wearing sacred thread by getting initiated into the order and thereby acquire the right to perform home and ritualistic forms of worship in public or private temples. Consequently, there is no justification to insist that a Brahman or Malayala Brahman in this case, alone can perform the rites and rituals in the temple as pact of the rights and freedom guaranteed under Article 25 of the Constitution and further claim that any deviation would tantamount to violation of any such guarantee under the constitution. AS long any one wall versed and properly trained and qualified to perform the puja in a manner conducive and appropriate to the worship of the particular deity, is appointed as Santhikaran dehors his pedigree based on casts, no valid or legally justifiable grievance can be made in a court of Law.
56. In (A. Ramaswamy Dikshitulu v. Govt. of Andhra Pradesh), the Supreme Court referred the Judgment of the Supreme Court in to a larger Bench.
57. In , the Supreme Court ruled as under:
The provisions contained in the group of Articles 25 to 30 are a protective umbrella against the possible deprivations of fundamental right of religious freedoms of religious and linguistic minorities.
India is a world in miniature. The group of Articles 25 to 30 of the Constitution, as the historical background of the partition of India shows was only to give a guarantee of security to the identified minorities and thus to maintain the unity and integrity of the country. It was felt necessary to allay the apprehensions and fears in the Hinds of Muslims and other religious communities by providing to them a special guarantee and protection of their religious, cultural and educational rights. The Constitution through all its organs is committed to protect religious, cultural and educational rights of all. Articles 25 to 30 guarantee cultural and religious freedoms to both majority and minority groups. The ideal of a democratic society, which has adopted right to equality as its fundamental creed, should be the elimination of majority and minority and so-called forward and backward classes. The constitutional ideal, which can be gathered from the group of articles in the Constitution under the chapters of fundamental rights and fundamental duties, is to create social conditions where there remains no necessity to shield or protect rights of a minority or majority. The Constitution has accepted one common citizenship for every Indian regardless of his religion, language, culture or faith. the only qualification fir citizenship is a person's birth in India. Such enlightened citizenship has to be developed where each citizen, of whatever religion or language, is more concerned about his duties and responsibilities to protect rights of the other group than asserting his own rights. The constitutional goal is to develop citizenship in which everyone enjoys full fundamental freedoms of religion, faith and worship and no one is apprehensive of encroachment of his rights by other in minority or majority.
58. From all these Judgments, what is clear to us is that the Constitution fathers have chosen to provide religious rights in terms of Articles 25 and 26 of the Constitution of India. The case laws referred to above would show that certain religious rights are guaranteed to a citizen of India. The religious right is subject to Article 26 of the constitution of India. Article 26 provides for a right to administer religious place. The argument in the casa on hand is that certain provisions are in violation of Article 25 of the Constitution of India. Learned Single Judge, as we mentioned earlier, has chosen to say that it is for economic activity and therefore, it is constitutionally bad. Learned Judge, in our view has not properly appreciated the scope of Articles 28 and 26 as sought to be argued before us and has not considered the religious right in the light of the present Act.
59. In so far as chapter III is concerned, we are of the view that the said provision cannot be considered to be in violation of Articles 25 and 26 of the Constitution of India.
60. In do far as Chapter IV is concerned in terms of Section 17, the common Law Pool is created. It is out of contribution made by the notified institution at 5% of their gross annual income after deduction of donation made as contribution to the appeal temple property and amount received for specified service or charge and grant received from the State Government. The temples do get fund on account of kanike, harike, donation, hundi etc., The expenses on which the temple is depending upon is the name and fame of the temple in addition to the religious practice available to that temple. Therefore, as rightly argued by the petitioners, the gross annual income for the purpose of percentage appears to be an arbitrary one. The common Pool Fund can be within the surplus left over and not on the gross in terms of the Act.
61. In fact, the supreme court in AIR 1963 SC 1636 has noticed Article 25(1) and 26(b), the right to manage its own affairs in the matters of religion. It 5% is taken from the gross annual turnover, it may be difficult to manage the temple and meet the expenses. Even the administration of Common Pool Fund is at the hands of the commissioner. Laudable objects are provided in the matter of administration of common pool fund. But a careful reading of certain purposes would show that the said purpose seems to be arbitrary in character. It cannot be forgotten that money is taken out of the Hindu temple. Money is poured by Hindus. It may be a laudable object to provide to a poor Institution of other religions. But It cannot be only from the funds Hindu temple alone. The State has to provide such assistance as is necessary to such institutions but there can be no compulsion only from Hindu temple to provide assistance to such institutions, it can be voluntary by Hindu temples, but it cannot be compulsory, prima facia in terms of the Act. In Section 19(h) rightly, the Government has chosen to say that the administration can be for establishment and maintenance of Hindu children. But those words are missing in Sections (1) and (j). This Court is not for a moment suggesting that poor institutions of other religions are not to be helped but who is to help is the question and how to help those Institutions. After all, davotees of Hindu temple provide kanika or money to that Hindu temple for temple purposes and it cannot be spent for other non-Hindu causes without any relevance to the Hindus. Though Hindu religion does not prohibit such contribution prima facie, but still it is desirable that such amount is spent only for Hindu institutions. As otherwise, there is every likelihood of the Hindu institutions asking for assistance/maintenance from other religious institutions which ultimately may result in unwanted religious quarrels.
62. In so far as Advisory Committee is concerned, it is seen that it is headed by a Minister. The Committee is only vested as advisory power in terms of Section 22 but however what cannot be forgotten is that there is every likelihood of political temple advise for political purposes in the event of the Minister being a Chairman of the Advisory Committee. Therefore, though the Chairmanship at the hands of the Minister does not by itself be considered to be unconstitutional or Illegal but still it would be a desirable thing to have a head of non political persons to avoid politics in religious institutions.
63. Lot of arguments are advanced with regard to notified institutions. At this stage, we must notice that this Act is enacted to have a uniform law for regulation of Hindu religious institutions. Government certainly has the power in terms of the Constitution to enact a law for better temple administration. In fact, the preamble to the Act itself would say that this Act is to make better provision for the management and administration of Hindu Religious institution. There are several Muzrai temples which, as on today are rendering fairly good service. Temples and maths, apart from providing religious services are also providing several welfare measures including food, shelter and education. If such temples are already better managed/administered, then why should such institutions are to be notified for the purpose of having a committee in terns of the Act. Merely providing some assistance by Government to them should not be understood as a right over the temple for the purpose of administration in terms of Article 25 of the Constitution.
64. Article 26(b) provides for a law with regard to regulating or restricting any political and other secular activities and providing for social welfare etc. But taking over and providing administration in respect of the Government temples, despite their better management certainly would be in violation of not only Article 14 but also under Articles 25 and 26 of the constitution of India. The state Government would be well advised to take over such temple only in the event of an adverse report after an opportunity against that temple. Taking all temples and administering then without any adverse order, as rightly argued would be hit by Article 26 of the Constitution of India.
65. But however, the power to take over the administration in the event of mal administration financial/mis-management certainly cannot be termed as violation of Article 26(b) of the constitution of India. 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. Therefore, application of Section 23 in all temples without adverse report in our view, would be in violation of Article 26(b) of the Constitution of India.
66. The constitution of the committee of management is provided Under Section 25 of the Act. The Committee consists of pradane archaic or archak. Atleast one member among scheduled caste and Scheduled Tribe. Of the other, atleast five of whom, two are women from among the persons in the vicinity of the temple. The 2nd proviso to Section 25(3) would show that it would not apply to Hindu religious denomination. We have in the earlier part of our Judgment shown that this Court has made no distinction between Hindu denomination and Hindus and hence exclusion of Scheduled Caste and Scheduled Tribe from the Committee of management in so far as Hindu religious denomination is concerned would be again hit by Article 14 of the Constitution of India. Moreover, the Scheduled Caste and Scheduled Tribe are to be a part of the Committee in the larger interest of Hindu community. Their exclusion in the case of Hindu religious denomination temples in our opinion would be an arbitrary, unjustifiable treatment thereby violating Article 14 of the Constitution or India.
67. Similarly, Section 25(4) provides for qualification to be a member of the committee. Section 25(4)(a) would say that a member should have faith in God. It cannot forgotten that he has to manage temples and that therefore he should have faith in Hindu religion as wall. Similarly Section 25(4)(d) provides for membership only to those who have donated or contributed for temple development. Why should a poor devotee be excluded is un-understandable. Similarly if a lawyer appears for or against an institution, he is disqualified. Therefore, from a reading of this section, what is clear to us is that atleast some of the classes would appear to be arbitrary.
68. In fact, an argument was advanced by Sri Kashava Bhat, learned Counsel that the Government has discriminated the Hindu religion s against the other religions. We do not accept this submission. Hindus form a class by themselves in terms of the religion and that therefore, the non notification of other religions or the non legislation of other religions cannot be a bar as argued.
69. We have repeatedly ruled that Hindu religion is one of the oldest religions available in India. It has the backing of centuries old scriptures, belief etc., Those believes, rituals, practices etc., are to be protected, unless the same is totally opposed to any part of the Constitution of India. Therefore, while on one hand, the religious rights in terms of Article 25 are to be protected and on the other hand, mal administration, financial irregularities by any religious institution has to be taken serious note of in the larger interest of temple discipline itself. The state has to draw a balance in maintaining temple disciple/temple administration in terms of the Constitution of India. The State unfortunately in the case on hand in the guise of having a uniform law has chosen to divide the religion itself in terms of our earlier discussion. Since the very Act is held to be discriminatory in this application, it is not possible to severe other parts and hence the entire Act has to be struck down as un constitutional and we do so in the case on hand. We also deem it proper to observe that the intention of the Legislature seems to be a uniform law for all Hindu religious institutions. If that is so, as has been done in Andhra Pradesh in terms of the Supreme court, the Government would be well advised to have a commission constituted for temple affairs and involve all non Hindu religious leaders/matadipathis/religious experts/social reformers and other experts and thereafter proceed to pass a uniform law in terms of the judgment of the Supreme Court in AIR 1980 SC 1. The Government can also think of having different regulatory measures for temples/maths/Jains etc., depending upon their religious belief etc., and of course, within the four-corners of the constitution.
However, it is for the legislature to decide the religious reformative law in terms of this policy of uniform law for Hindu religions. We would leave it to the Legislature to take a legislative decision in terns of the Constitution. However, we deem it proper to observe that the Government would be doing a great service to the Hindu society by eliminating all the evil and corrupt practices, if at all prevailing in Hindu institutions. That would go a long way in Hindu temple reforms.
70. We have already ruled that the Act is hit by Articles 14 and 26 of the Constitution of India. We have further ruled that it is not possible to severe them. Hence, we deem it proper to strike down the entire act and consequently strike down the notification as un constitutional. However, if any action is taken in terms of the Act prior to the date of the order, the same are protected and this Judgment would operate prospectively from the date of this order.
71. Ordered accordingly. No costs.