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TMI Blog1953 (9) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... management of the temple under Section 62 of Madras Act II of 1927 and the same was modified by the District Court, South Malabar by its decree dated 6-1-1950 passed in O. S. No. 5 of 1945. The scheme provides 'inter alia' that there should be a paid manager for the temple to be appointed by the Board from among three persons whose names are to be sent up by the trustees. Troubles arose when the Board rejected all the three names recommended by them. The Uralans felt that the action of the Board was an unwarranted interference with their rights as hereditary trustees. On 26-9-1951 there was a meeting of the Uralans in which one of them Sastrasaram Bahattadripad was elected as the managing trustee and the petitioners were constituted a managing committee. On 18-11-1951 the Deputy Commissioner made a demand on the petitioners for the production of the account books of the temple and other papers; and as that was not complied with within the time given, he sent a further notice on 3-1-1952 calling upon the petitioners to show cause why action should not be taken against them and the so-called manager under Section 89(1)(b) and (c) of the Act. The reply of the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Area Committees, and entrusts the administration of the Endowments to them. Section 20 enacts that the administration of all religious endowments shall be subject to the general superintendence and control of the Commissioner; and such superintendence and control shall include the power to pass any orders which may be deemed necessary to ensure that such endowments are properly administered and that their income is duly appropriated for the purposes for which they were founded or exist. Then follow provisions which confer wide powers on the authorities in the matter of general supervision of the endowments, appointments, suspension and dismissal of trustees, notification of temples and appointment of Executive Officers and the framing of schemes and appropriation of trust funds cy pres. Section 92 of the Civil Procedure Code is repealed with reference to endowments which fall within the scope of the Act. Under Section 76(1) of the Act all religious institutions are required to pay to the Government a contribution not exceeding 5 per cent of their, income for services rendered by the Government. Section 76(4) provides that the 'Government is to pay the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tially on the assumption that the law on the subject under the Indian Constitution is the same as Under the American Constitution, it is necessary to examine the latter to see how far this assumption is well founded. The First Amendment to the American Constitution is as follows: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof......... It was held in 'Barron v. Mayor and City Council of Baltimore', (1861) 8 Law Ed 672 (C), that this was a restriction on the powers of the Congress, but not of the State Legislatures. The 14th Amendment which came into force in 1868 enacted that no State shall deprive any person of life, liberty or property, without due process of law. Though the freedoms mentioned in the First Amendment are. not expressly included in this Amendment, the decisions of the highest authority have held that they are comprised in the liberty guaranteed by the 14th Amendment. Vide 'Near v. Minnesota', (1930) 283 U S 697 (D); 'Murdock v. Pennsylvania', (1942) 319 U S 105 (E) and 'Everson v. Board of Education', (1946) 330 U S 1 (F). Thus, the prohibitions enacted in the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was intended to erect 'a wall of separation between Church and State'. 'Reynolds v. United States', (1878) 98 U S 145 (G). The learned Judge added that at the same time we must be careful that we do not inadvertently prohibit Now Jersey from extending its general state law benefits to all its citizens without regard to their religious belief. After referring by way of analogy to the support by the State of the Police and Fire Brigade which render service to all members of the society without regard to their religion, the learned Judge observed: That Amendment (the first) requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to he used so as to handicap religions than it is to favour them. Strong dissents from this decision were expressed by Jackson J. and Rutledge J. In Illinois v. Board of Education', (1947) 92 Law Ed 649 (H), the question arose with reference to imparting of religious instructions to school going students under a release time arrangement . This arrangement owes its origin to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Mr. Madison said, he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. Passing years, however, have brought about the acceptance of a broader meaning, although never until today, I believe, has this court widened its interpretation to any such degree as holding that recognition of the interest of our nation in religion, through the granting, to qualified representatives of the principal faiths, of opportunity to present religion as an optional, extracurricular subject during released school time in public school buildings, was equivalent to an establishment of religion. A reading of the general statements of eminent statesmen of former days, referred to in the opinions in this case and in '(1946) 330 U S 1 (F)' will show that circumstances such as those in this case were far from the minds of the authors. Then the learned Judge quoted one of them Mr. Jefferson as himself supporting a scheme for imparting religious instructions to students outside the school buildings or even inside. Then, discussing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r hostile, suspicious, and even unfriendly ..........When the state encourages religious instruction or co-operates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not, would be to find in the Constitution a requirement that the Government show a callous indifference to religious groups. That would be preferring those who believe in not religion over those who do believe......We find no constitutional requirement which makes it necessary for Government to be hostile to religion to throw its weight against efforts to widen the effective scope of religious influence......... We cannot I read into the Bills of Rights such a philosophy of hostility to religion. 4. It will be seen that in American jurisprudence the meaning of the words establishment of religion has not been the same at all times and with all persons. Grammatically, establishment might mean either the act of establishing, in which case the meaning of the First Amendment will be that the Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be compelled to pay taxes the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. Article 28(1) prohibits the imparting of religious instructions in educational institutions maintained by the State. 6. It must be noted that while Arts. 25 and 26 reproduce the law as enacted in the Second clause of the First Amendment, there is nothing in our Constitution which corresponds to the first clause therein. The inference is obvious that the framers of our Constitution were not willing to adopt in its entirety the theory that there should be a wall of separation between Church and State which the first clause of the First Amendment was interpreted to embody. What in fact they did was to adopt that principle in its application to particular questions. Thus, Article 27 embodies the principle that no tax should be imposed on any person for the maintenance or promotion of any religion. Article 28(1) prohibits the imparting of religious instruction in State-maintained educational institutions. Apart from making provisions in respect of particular subjects, the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abling, in that it empowers the legislature to make grants in respect of matters which are not within their legislative competence, it is restrictive in that grants can be made only for a public purpose. The Article does not in terms prohibit any grant for meeting expenses of administering religious endowments. But it is contended that religion is, under the Constitution, not a public purpose and that, therefore, a grant for purposes mentioned in Section 76 (4) of the Act would be in violation of Article 282. The argument in support of the position that religion is not a public purpose may be thus summed up; Article 27 prohibits the raising of revenue by taxation for being appropriated towards the promotion or maintenance of any particular religion or religious denomination.' That means that religion is not a public purpose and that is in accordance with the American law on the subject. Article 282 is complementary to Article 27. It prohibits the expenditure of public revenue on what are not public purposes. Therefore, public funds cannot under Article 282 be appropriated towards the expenses mentioned in Article 76(4) of the Act. The result is that the machinery set up under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fic purposes and appropriations would have to be made pursuant thereto and that it is this that is referred to in Article 27. It must be mentioned that in the above enactments the cesses and duties are imposed for the benefit of certain statutory bodies created thereunder and the State acts merely as the collection agents of those bodies and hands over the net realisations to them. The taxes when realised by them do not belong to them. They are held by them merely as statutory agents on behalf of certain bodies to whom they belong. The position under the Act, however, is that when contributions are realised under Section 76(1) of the Act they belong to the Government and become part of its general funds which under Article 266(1) are to form one consolidated fund to be entitled the consolidated Fund of the State. Articles 202 to 207 provide for the appropriation of this fund. Article 202(1) provides that an annual financial statement shall be laid before the Legislature containing the estimated receipts and expenditure of the State. Article 202(2) enacts that the estimate of expenditure should show separately (a) sums charged on the Consolidated Fund of the State we ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in contravention of Article 282 on the ground that it is not for a public purpose. 9. In support of his contention that religion is not a public purpose Mr. K.V. Venkatasubramania Aiyar relied on certain observations in '(1946) 91 Law Ed 711 (F)'. After observing that the State Legislature enjoyed considerable latitude in deciding whether a particular purpose is a public purpose or not, Jackson J. observed: It may make public business of individual welfare, health, education, entertainment or security. But it cannot make public business of religious worship or instruction, or of attendance at religious institutions of any character. There is no answer to the proposition, more fully expounded by Mr. Justice Rutledge, that the effect of the religious freedom Amendment to our constitution was to take every form of propagation of religion out of the realm of things which could directly or indirectly be made public business and thereby be supported in whole or in part at tax-payers' expense. That is a difference which the Constitution sets up between religion and almost every other subject-matter of legislation, a difference which goes to the very root of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... First Amendment, there is nothing in the Constitution corresponding to the first clause of the First Amendment. There would accordingly be no inconsistency in holding that the exercise of religion by a person and by a religious denomination protected by Article 25 Article 26 is a private purpose, while the administration of properties endowed for religious institutions is a public purpose. 10. Counsel for the petitioners also relied strongly on the language of Article 27 as leading to the conclusion that the promotion or maintenance of any particular religion or religious denomination was not under the Constitution a public purpose. Reference was made in this connection to Article 40 of the Swiss Constitution which is as follows: No person may be compelled to pay taxes the proceeds of which are specifically appropriated in payment of the purely religious expenses of any religious community of which he is riot a member. It was argued that while adopting this provision, Article 27 has made a significant departure from it, in that it prohibits the imposition of taxes, the proceeds of which are to be appropriated for meeting the expenses of any religiou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as to the propriety of any particular religious observance. In all these aspects religion is purely a private matter. It consists in what beliefs a particular individual holds; what code of conduct he accepts, and what rituals he adopts in the observance of religion. It is to this aspect of religion that Articles 25 and 26 are addressed. It being a purely personal matter, the Constitution guarantees that a person or religious denomination shall not be interfered with in the free exercise thereof. This guarantee is no doubt not absolute; the Government might impose controls even within the area covered by Article 25 and Article 26, if they are required in the interests of public order, morality or health. That is also the position under the free exercise of religion clause in the First Amendment. It was held in '(1878) 98 U S 145 (G)' that a law of the State prohibiting polygamy which was recognised by the Mormon Church was not a violation of that clause as the same was required in the interests of public morality. In 'Davis v. Season', (1888) 33 Law Ed 637 (L) dealing with the same question, Field J. observed: It was never intended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f public temples in this country as distinguished from private temples. Unlike private temples which are intended as a place of worship by members of the family, public temples are dedicated to the public for worship as a matter of right. This classification of temples into public and private itself brings out the distinction that though religious worship is a personal matter, there can be institutions of a public character in relation thereto. It is on this footing that the Hindu Sovereigns of this country exercised control over temples (vide Hindu and Mahomedan Endowments by Mr. P. K. Ganapathi Iyer 2nd Edn. pages 23 to 25). When the British became the rulers of this country they claimed a similar right to supervise the administration of properties endowed for religious institutions and enacted Regulations assuming control over them. Such were, for example, Regulation XX of 1810 in Bengali Regulation VII of 1817 in Madras and Regulation No. XVII of 1827 in Bombay Under these Regulations the general superintendence of all religious and charitable endowments was vested in a Board of Revenue. As the result of an agitation carried on by Missionaries against a Christian Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a single individual, but which, in course of time, has become vested by descent in more than one person. In 'Amulya Chandra v. Corporation of Calcutta', AIR 1922 Cal 333 (O), the question for decision was whether the acquisition of certain; properties by the Corporation of Calcutta for building a Dharmasala for accommodating pilgrims resorting to a Hindu temple was for a public purpose. The Privy Council held that it was, and that it was not excluded from the term public purpose for the reason that it would benefit pilgrims and Church dignitaries. The position in law before the Constitution thus was that while the State did not interfere in matters of religion in its doctrinal ritual aspects treating it as a private purpose, it did exercise control over the administration of properties endowed for religious institutions treating it as a public purpose, if the institutions were them selves dedicated to the public. Mr. K.V. Venkatasubramania Aiyar did not dispute this. He only contended that the Constitution had: brought about a change in this aspect of the matter and that what was a public purpose before had become private purpose thereunder; and this content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground once again. Agreeing with the views expressed therein, we must overrule this contention. In the result, we must hold that the impugned Act is not void on the ground that it is an unconstitutional interference by the State in matters of religion. 16. The next contention relates to the question whether some of the provisions in the schemes framed for the temples are repugnant to Article 19(1)(f) of the Constitution and therefore void. The petitioners, it will be remembered, are all hereditary trustees and they claim that they are representatives of the original founders of the temples. Their complaint is that under the schemes for the management of the temples they have been virtually deprived of their office and reduced to a non-entity. For a correct appreciation of the position, it will be convenient to take up one of the schemes and examine its provisions. The schemes are all of them of the same pattern. In W. P. No. 71 of 1852 the scheme was framed in O. S. No. 5 of 1945, District Court, South Malabar. It starts with a declaration that the management shall vest in the hereditary trustees and that a managing committee should be appointed consisting of three person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he co-heirs. When there are no emoluments, even then the joint rights of the co-heirs can be exercised by all of them under an arrangement providing for management by turns. In Manohar Bhupendra', AIR 1932 Cal 791 (R), a Full Bench of the Calcutta High Court held that the rule in 'Ganendromohun Tagore v. Juttendromohun Tagore', 9 Beng. L. R. 377 (PC) (S) was applicable to devolution of the office of hereditary trustees; and that was approved by the Privy Council in 'Ganesh Chunder v. Lal Behary and 'Bhabatarlni Debt v. Ashalata Devi'. 18. In 'Smt. Angurbala Mullick v. Debabrata Mullick' [1951]2SCR1125 , the point for determination was whether the office of shebaitship was property for the purpose of Hindu Women's Rights to Property Act, XVIII of 1937. In holding that it was, Mukherjea J. observed: The exact legal position of a shebait may not be capable at precise definition but its implications are fairly well established. It is settled by the pronouncement of the Judicial Committee in 'Vidyavaruthi v. Baluswami, AIR 1922 PC 123 (W), that the relation of a Shebait in regard to debutter property is not that of a trustee t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le property. Property may be inalienable, but yet a person may be entitled to hold it as is the case of inalienable service inams. On the same principle, the fact that the trustees have no right to participate in the income from the endowment or its emoluments, is not a ground for holding that it is not property for the purpose of Article 19(1)(f). The word hold is wider in its significance than the word enjoy and trustees who are in management of religious endowments can be said to hold office, though they may have no beneficial interest to enjoy. We are accordingly of opinion; that hereditary trusteeship is within the protection afforded by Article 19(1)(f), even though there, was no emoluments attached to the office. We may add that the allegations in the affidavits in support of these petitions disclose that the petitioners have also beneficial interests in the endowments. In the result, we must hold that the provisions in the schemes in so far as they encroach upon the rights of the petitioners as hereditary trustees are void under Article 19(1)(f) of the Constitution. 20. It remains now to consider what reliefs could be granted to the petitioners. We ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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