Arguing for Temple freedom, without suggesting a viable solution, is like trying to win a football game without there being any goal posts.
The colonial approach
The Indian State, even prior to independence, has shown a keen interest in administering religious institutions, more particularly Hindu Temples. The East India Company after first, perhaps as an attempt to gain certain legitimacy, participated in some religious ceremonies and rituals. This participation led to a more sophisticated attempt in intermingling with the religious institutions in India, where attempts to control such institutions were often camouflaged as attempts at resolving internal disputes. The British policy with regard to the takeover of religious institutions was not one of direct conflict or even of direct control, in stark contradistinction to medieval rulers of the land, rather it was of gradual partial control concealed as secular regulation. Often the inroad in the right to self-regulate occurred due to intra-party dispute within the internal workings of these religious institutions. It is hard not to speculate that the British policy regarding this soft-regulation was a means to keep a check on the brewing tendencies of the times in these ancient popular centres. It is easy to theorise that the soft control, with the East India Company Government, often part-taking and sometimes promoting the observance of religious rites in the functioning of the Government, in a post-Mughal era India, must have helped the British Government gain a certain amount of legitimacy in the majority Hindu Indian populace of the time. This observance of pagan or false rituals did not go unnoticed by the missionaries, who were very influential in 19th century Britain, and in 1833, Court of Directors of the East India Company issued directives to disassociate and merely tolerate the observance of religious rites and to take no part in religious celebrations or provide any support in such ‘debasing superstitions’.[1]
Post the 1857 revolt and 1833 dispatch, this soft “control” was lessened however, it soon encountered another form of secular regulation – the highly developed British Law regarding trusts. The broad governance of religious institutions in India, on the basis of the basic principles of the law of trusts is present till date, with Hindu religious institutions being understood as “trusts” established for the furtherance of certain principles. While in theory the trust categorisation of religious institutions, especially Indian religious institutions may be questionable[2], the same is not relevant for the present discussion. Things took a serious turn with the power to legislate regarding religious institutions shifting from British to Indian hands. By way of the Montague-Chelmsford Reforms of 1919, the said power of legislation shifted to the Provincial Legislatures which were elected by Indians and consisted of Indian leaders. The said Provincial Legislature of Madras passed the first formalised legislation dealing with Temple administration in the form of the Madras Hindu Religious Endowments Act, 1926. In many ways, as we will see, the story that started in 1926 with this legislation, has not reached its conclusion. It is ironic that it was the legislature elected by the Indians, manned by Indians and made for Indians, which was the first to invade Hindu religious management through legislation.
The essential practices doctrine
Post the British Raj, India became a sovereign democratic Republic which ostensibly, like in all other civil rights fields, ought to have enhanced the scope of freedoms of entities even in case of religious rights. However, the draftsmen, had something else in mind. Indisputably, most draftsmen, particularly the Sub-Committee on Fundamental Rights, consisted of persons well versed in laws across the world and the workings of the Constitutions, although not necessarily persons well versed in the administration of religious institutions or the delicate issues surrounding the same. The provisions of the Constitution, Articles 25 and 26 to be particular, were drafted keeping legislation like the 1926 Madras legislation in mind. Therefore, the core text of the Constitution itself, to a great extent, allows State interference and regulation in religious institutions at least in matters which are related to religion but which the Constitution considers secular – economic, financial or political activity associated with religion. The doctrine of East India Company of the rejection and denial of intermingling with “false/pagan” religions was turned on its head with the Indian lawmakers in British India and was subsequently given constitutional backing by the Constitution makers. By way of the said constitutional provisions, several States in India have enacted laws which allowed the government to heavily regulate religious institutions, usually Hindu temples and sometimes even one specific temple of the legislature’s choosing. The said legislations inherently interfered with the administration of religious institutions which have been consistently upheld by the Supreme Court.
Over the years, the Courts have given birth to what is now referred to as the “essential practices doctrine”. The phrase ‘in the matters of religion’ has been interpreted by the Courts in a restrictive and linear fashion, resulting in the restriction of the freedom to manage the affairs of a religious institution. To determine the extent of the religious freedoms, the essentiality theory, normatively limits the religious freedoms to matters essential to the practice of the religion/ denomination. The final arbiter of this division of any activity into religious or secular would be the Court, wherein it is examining the theological and the cultural basis of such activity within the denomination to ascertain if such function would be essential to the practices of the denomination. This has been criticised by the scholars from all sides of the spectrum. For example, J.D.M. Derrett has written about the paradox of the Court playing the role of religious interpreter as under:
‘The courts can discard as non-essentials anything which is not proved to their satisfaction – and they are not religious leaders or in any relevant fashion qualified in such matters – to be essential, with the result that it would have no constitutional protection’.[3]
Senior Advocates and scholars on the subject, Mr. Rajeev Dhavan and Mr. Fali Nariman offer a more scathing assessment:
“With a power greater than that of a high priest, maulvi or dharmashastri, Judges have virtually assumed the theological authority to determine which tenets of a faith are ‘essential’ to any faith and emphatically underscored their constitutional power to strike down those essential tents of a faith that conflict with the dispensation of the Constitution. Few religious pontiffs possess this kind of power and authority’.[4]
The popular left leaning commentator, Mr. Pratap Bhanu Mehta, although not a legal scholar, but an observer of the Supreme Court, has said that
“Hinduism lacks not only a caliphate but a Vatican as well. What agency was there, then, with the power and the legitimacy to undertake the overhaul of religious traditions? … In post-independence India, the answer turned out to be obvious: Only the modern State, with institutions legitimised by universal suffrage, could take up the work of reforming Hinduism.[5]
It has been said that though appropriation of the role of interpreter of religious doctrine is most unusual for courts in secular constitutional polities, in the Indian context, this role has been facilitated by the lack of a unitary ecclesiastical organisation for Hinduism[6]. This has given the opportunity, as Marc Galanter points out, to the judiciary to embark on an ‘active reformulation of Hinduism under government auspices in the name of secularism and progress’.[7] This leads the Court to insist on religion without, what the Court in its wisdom designates, as superstitious and irrational. It is submitted that the essential practice doctrine can then be seen as the Court’s attempt to discipline and cleanse religion or religious practices that are seen as unruly, irrational, and backward. The Court has systematically appealed for legitimacy to authoritative figures associated with Vedic rationalism, as well as to privilege canonical texts within this tradition. By doing so, the Court not only has narrowed the ‘institutional space for personal faith’[8], but also marginalised other intra-religious diversities which may be popularly practiced as a part of religion. Mr. Marc Galanter, the famous scholar on Indian Constitutional law, perhaps sarcastically, asks whether the Constitution has given the Court a mandate to ‘participate actively’ in the internal reinterpretation of Hinduism’[9]. This has been particularly true for Hinduism, since the Constitution for all practical purposes can be seen as a ‘charter for the reform of Hinduism’.[10]
The essential practices doctrine has been questioned by scholars on both sides of the ideological divide – one being the expansionists, advocating for interventionist approach the other being the traditionalists, advocating for a wider domain of exercise of religious freedoms. Apart from the above, there exist other apprehensions of larger doctrinal problems of constitutionally approved discrimination amongst different categories of faiths in the Indian context. The said apprehensions are based on a rather simple premise – if essentiality of a practice within a belief system, is the determinative factor in defining the extent of constitutional freedom accorded to that particular religion/denomination/section thereof, the degree of such religious freedom would be different for every religion/denomination due to the different nature of every religion/belief system. It is submitted that different religions may seek to regulate or effect the lives of their practitioners to different extents and some religions may have more “essential features” and some may have less “essential features”. Therefore, the scope of “essential practices” would vary depending upon how wide is the scope of such essentiality within the said religion/denomination.
It is argued that Indic faiths with the lack of sophisticated religious establishments, the complexity and diverse mosaic of temples in India, the lack of a streamlined path towards religious affirmation, the organic and unique history of every small sub-cultural unit within the omnibus idea of Hinduism, are points which separate it from the monotheistic, well-organised, book based, ideas of other faiths. The said differentiations may often be marketed as rational strengths, but on account of the essentiality doctrine, have turned out to be constitutional weaknesses. It has been said that due to the extent of constitutional religious freedoms being a product of such essentiality imbalances, results in rewarding the unyielding and punishing the malleable[11]. With the Supreme Court tying itself in knots over the Sabarimala issue and the reference to nine Judges[12], the largest ever Bench on the issue of religious freedoms, still pending, the questions over the efficacy of the essential practices doctrine remain.
It may not be out of place to mention that over the years, almost every financial economic or management aspect despite being overtly religious in nature, became ‘secular’ and the local governments across the country, controlled it through so called independent Temple Boards manned by persons directly appointed by the State. These Boards, in the name of secular management, appoint priests, place hundis for religious donations, decide on “VIP” entry, use religious donations as “fees” for management, etc. With the passage of time, the Temple authorities and the ecosystem associated with the Temple, has been relegated to an ornamental role having little say in Temple regulation and surviving at the mercy of the “secular” State’s Temple Boards. In effect, the Mcaulayian bureaucracy, with a ‘socialist’ zeal has wrested the control over the vast resources at the disposal of the temple authorities while the Indian Courts chose to remain spectators to this.
Lack of democratic pressure on the issue
The question that one needs to ask at this juncture is that why has the Indian State carried out this nationalisation of Temples? Why have the people, possessing democratic power over the people carrying out such actions, allowed this to be done? Why have the erstwhile controllers of Temples [different from people from the temple ecosystem] been so easily side-lined by the State with no significant pushback from any democratic quarter? Can this be attributed solely to the disappearing religious identity and sensibilities of the majority population in India? The answers are murky and in the realm of hypothesis and theories. What is clear though is that it is difficult to attribute this nationalisation solely to the “evil” State seeking to wrest control of religious institutions and a passive Court allowing this. The democratic reasons behind this run deeper, depicting an inherent lack of sophisticated systems of governance within the Temple ecosystem. In any event, it has to be acknowledged that perhaps the larger Hindu society was not fundamentally at odds with control of Temples through State-appointed persons. Further, most major Temples, which have been nationalised by the State, were taken over under the pretext of internal dispute between authorities or on allegations of financial mismanagement. While it is easy to hypothesise that these allegations were moonshine invented by an expansionist State, it cannot be ignored that Hindu Temples lacked any form of sophisticated management systems. The reasons for the lack of will for self-governance may be plentiful, with the most obvious being lack of political power during the medieval and the British times in the hands of persons genuinely interested in the cause. Further curiously, unlike the Church, which has always been a separate body from the State and in fact exercised considerable control over the State across the medieval era, Temples were under the regulation/control of “State” in such era. Therefore, it was the Indian Kings, who often built these Temples, were the ones, who claimed to own these Temples. The Raja of Puri argued before the Indian Supreme Court that the Jagganath Puri Temple is his personal property and therefore cannot be takenover by the State. In essence, while the reason behind State control for Temples is majorly the expansionist nature of the Indian State, it cannot be denied that this process of takeover has been aided by the lack of a coherent and sophisticated model of self-governance for Hindu Temples.
It is imperative therefore for the critics of Temple control by the State, on either side of the spectrum, to suggest viable, enforceable and modern solutions to the problem of Temple management. The Temple freedom activists cannot end their argument on a rallying cry of Free Temples! and by pointing out the problems associated with the essential practices doctrine or the State intervention that it has allowed. To be fair, everyone who knows about the subject understands the problems with State control of Temples, even the persons not associated with Hindu issues. It cannot be ignored that to a limited extent, it was the somewhat feudal nature of Temple management which allowed the State to intervene with such ease in such matter without any public backlash. Unless the feudal systems are ignored and a better alternative is suggested, the calls are just empty words gaining traction leading people in to a blind alley. The example of Sikh community, in terms of the model of self-governance it achieved, that too during the British era, is something worth emulating.
The Sikh example in self-governance
At the start of the 20th century, there was a growing movement within the Sikh community for proper system for the governance of administer the Harimandir Sahib Complex and other important historical Gurdwaras. A general assembly was summoned of the Sikhs to elect a representative committee of the Sikhs. Before this Committee could be formed, the British Government set up its own committee consisting of 36 Sikhs to manage the Harimandir Sahib. Despite the same, the scheduled meeting took place and elected an even bigger committee consisting of 175 members, including the members of the British Committee and named it Shiromani Gurdwara Parbandhak Committee [“SGPC”]. This marked a turning point in the modernisation and democratisation of the management of Gurdwaras which soon led to the enactment of the Gurdwaras Act of 1925 [one year before the intrusive 1926 Madras Temple legislation]. The Act provided a Central Gurdwara Board elected by the Sikhs which became the custodian of all-important Sikh places of worship.
Over the years, the SGPC has evolved in to an important democratic body for the self-governance of issues amongst Sikhs. In 1953, the SGPC even allowed an amendment for the reservation and representation of Sikh scheduled castes in the Committee. In the same manner, organised religions like Islam or Christianity, control their religious institutions in almost a “corporate” manner, with top down internal management systems and dispute resolution setups. In fact, the Indian State has facilitated internal dispute management of Islamic wakfs by setting up a Wakf Board and a Wakf dispute resolution Tribunal. The Indian Supreme Court has in fact held that other secular courts like the lower courts and the High Courts should not entertain such disputes[13]. Similarly, the Vatican or other diversified Church setups, control properties and the management of the Churches.
While the example of organised religious like Islam and Christianity in juxtaposition to Hinduism may not be appropriate, the Sikh Gurudwara example is more apt. The Sikh example shows how a movement for control of religious institutions, must always have a plan in place of how the religious institution would be governed once the State control is eradicated. Thus, one must today ask that if Temples are to be freed from the Government backed Boards, who will control these Temples? Is there any mechanism to determine who will be placed in the Board in matters of succession? Will the feudal system of the Temple being a personal property of the Raja be back? The answers to this, have to be clear and must come with an alternative. The alternative cannot be imposed in a top down manner where a statute is enforced artificially over the Temples. Unless there is a popular movement, seeking disinvestment by the Government of nationalised temples along with a democratic and self-sustaining model proposed, the calls to Free Temples! remain as empty as politicians promises.
The way ahead
The Indian State has often controlled important individual Temples through a specific legislation with temples like Kashi Vashwanath Temple, Ujjain Mahakaal Temple, Vaishno Devi Shrine, Siddhivinayak Temple, Saibaba Temple, Jagganath Puri Temple, etc. being “taken over” by the Government through specialised legislation. On the other hand, State level Boards have also been formed to control numerous Temples through one body like in the case of Andhra Pradesh, Tamil Nadu and more recently Uttarakhand, with its proposed Char Dham Shrine Board. If one studies the various legislations, either approach has not changed the role of the Government, with all Board appointments being controlled by the State making the State, the de facto, custodian of the management. There may however be a silver lining. In the case of setting up of a trust for the Ram Mandir, the Government chose not “control” the board through and has majorly appointed prominent Hindu leaders and religious pontiffs [and a member from the reserved category] and two ex-officio government officers in a fifteen member trust board. Considering the controversies that have been surrounding some government appointees in the past[14], the ex-officio members of the Government have to be “believing” Hindus [and not just Hindus]. Considering the politically crucial role of the Ram Mandir in Indian politics, it was commendable for the Government who chose to stay away from the management of the proposed Temple despite the fact that it could have adopted a more pervasive role, considering the precedent on the subject.
On a larger scale, while looking for a solution, the situation of Hindu Temples becomes even more complex due to the nature of Temples and the pantheon of deities, belief and rituals. The ecosystem surrounding the Temples, belief systems and the rituals vary from Temple to Temple and in any manner, it can be said that no two Temples in India can be said to be the same. To suggest a top down, Central Committee like the SGPC, may therefore be inadvisable considering the boundless diversity within the Hindu fold and religious institutions. In such a scenario, it is important to suggest a more decentralised approach to Temple management.
The point to be noted is that for Hindu Temples to be free two aspects need to be internally developed first before seeking to remove State control: one, internal democratic representatives and second, decentralised/localised electoral college which will elect these representatives. Critically, the managing body must also necessarily have representatives of the local priests in the relevant Temple, as there could be no one better than the local priest who understands the traditions of the Temple better. The example of the Kamakhaya Devi Temple in regard is relevant which elects a ‘Doloi’ from an electoral college of ‘Bordeories’.[15]
Lastly, one must not forget that it was the in-fighting, internal disputes and allegations of financial mismanagement, that provided the easy passage for the State to intervene, and therefore, internal systems must be developed, to avoid such contingencies. For example, there must be a means to conduct fair audits of properties and accounts, an adjudicatory tribunal would have to be developed to resolve disputes and a system for conducting free and fair democratic process in election would have to be developed. What is required is a Panchayatesque approach to Temple management with individualised democratic bodies to govern local Temples along with broader internal mechanism to aid such bodies in financial management and dispute resolution. Once this is established, the State may provide a centralised body for genuine graceful regulation [almost in the mould of a SEBI or IRDAI] as opposed to interference and “takeover” Temples in the false pretext of “regulation”. However, to rely on the State to aid this process would be silly as the State itself is one of the beneficiaries of the status quo. The status quo is to be challenged with a stone in one hand and solution in the other. The lack of either makes the challenge untenable.
*Lawyer practicing before Supreme Court of India, Panel A counsel for Union of India and Special Prosecutor for Enforcement Directorate
[1]‘A Late Resident in India’, The Connexion of the East-India Company’s Government with the Superstitious and Idolatrous Customs and Rites of the Natives of India, Stated and Explained – Text of the Dispatch of 1833, para 17, p. 48
[2] The application of law of trust to Hindu religious institutions legally converts the institutions to charitable “trust” thereby failing to recognise that there are certain aspects of Hindu temples which cannot be controlled through the legal fiction of trusts. It is, however, difficult to identify any other legal fiction or legally recognised mechanism to understand the identity of temples.
[3]J.D.M. Derrett, Religion, Law and the State in India (London: Faber & Faber, 1968), p. 447.
[4]Dhavan and Nariman, ‘The Supreme Court and Group Life: Religious Freedom, Minority Groups and Disadvantaged Communities’, p. 259.
[5]Pratap Bhanu Mehta, ‘Hinduism and Self-Rule’, in Larry Diamond, Marc F. Plattner and Philip J. Costoponlons (ed.), World Religions and Democracy (Baltimore and London: Johns Hopkins Press, 2005), p. 64.
[6]Rononjoy Sen, Articles of Faith: Religion, Secularism and the Indian Supreme Court, Oxford India Paperbacks
[7]Marc Galanter, Law and Society in Modern India, p. 249.
[8]Subrata Mitra, ‘Religion, Region and Identity: Sacred Beliefs and Secular Power in a Regional State Tradition of India’, in Noel O’Sullivan (ed.), Aspects of India: Essays on Indian Politics and Culture (Delhi: Ajanta Publications, 1997), p.91.
[9]Marc Galanter, Law and Society in Modern India, p. 251.
[10]Ibid., p. 247.
[11]Kanu Agrawal, The Errant Knight, Indian Foundation Journal, January 2020
[12] Kantaru Rajeevaru (Right to Religion, In re-9 J.) v. Indian Young Lawyers Assn., (2020) 3 SCC 52
[13]For more, see https://economictimes.indiatimes.com/news/politics-and-nation/leave-waqf-cases-to-tribunal-sc-tells-lower-courts/articleshow/6978753.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
[14]For more regarding the controversy regarding TDP MLA V. Anitha being a member of the Tirupathi Devasthanam Board, See https://www.thenewsminute.com/article/tdp-mla-anitha-asks-cm-naidu-remove-her-ttd-board-over-christian-controversy-80021; There is also a controversy with regard to Abdul Rehman Antulay becoming a member of the Siddhi Vinayak Temple Board.
[15]The Kamakhaya Devi Temple model is interesting in this regard. The main Kamakhya Temple and the subsidiary temples in and around the three hills of Nilachal are collectively known under the general name of ‘Kamakhya’. It may be mentioned that the subsidiary temples are also known in Assamese as ‘Nanan Devalayas’. The families of the priests of the main temple call themselves ‘Bordeories’. The families of the priests of the subsidiary temples are known as ‘Deoris’. The head priest is called the ‘Doloi’. The said priests elect their representative to the managing committee who is the head of the managing body.