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    subramanian swamy vs state of uttarakhand

    Nov 03, 2020.

    By: Krishnagopal Abhay

    The Petitioner challenged the constitutionality of the Uttarakhand Char Dham Devasthanam Management Act, 2019 (for short “the Act”) which was enacted to make legal provisions for the management of temples and devasthanams located in Uttarakhand. On 21st July, 2020, the Hon’ble Uttarakhand High Court upheld the constitutionality of the Act. Aggrieved by the judgment, the Petitioner decided to move the Supreme Court. This piece will give a brief overview of the impugned judgment.

    The Court began by listing certain temples which are similarly managed by the States, and observed that some of the Legislations have been upheld in the past when their constitutionality was challenged.

    The Petitioner argued that the State ought to have placed evidence of mismanagement which necessitated the Act, which shows malafides and extraneous considerations on their part. The Court rejected this argument and said that there is no constitutional obligation on the States to produce evidence of mismanagement, before it could bring a legislation.

    The Petitioner expressed his reservations with the Chief Minister being the ex-officio Chairperson of the Board. He suggested that a Central Legislation be promulgated after consultation with various heads of religious denominations. After emphasizing on the plenary powers of both the Central and the State legislature to make laws, the Court rejected the above contention and said that only the validity of the law can be checked; the Courts can neither attribute any malice to the legislature, nor can they judge the wisdom or vagueness of the law.

    The Petitioner submitted that as the Act contravenes Article 13 read with Articles 14, 25, 26 and 31-A(1)(b) of the Constitution, and as it falls within the ambit of Article 13(3)(a), it is void-ab-initio; and hence, to be treated as invalid from the outset. Additionally, it was pointed out that Section 45 of the Act excludes other religions from its ambit, making it violative of Article 14, for being arbitrary. On Article 14, the Respondent-State contends that the temples, being public, form a distinct class. Hence, due to reasons applicable only to them, the law can apply to them distinctly.

    The Hon’ble Court accepted the argument of the respondents that it is a reasonable classification and rejected the contention it is violative of Article 14. The Hon’ble Court observed that in a pluralistic country like ours, it is not necessary that a law has to apply on all religious institutions; and can be applied “according to the exigency of the situation”. It was further observed that a uniform law “though desirable, may perhaps be counter-productive”. The Court pointed out the 2 tests of reasonable classification- ‘Intelligible Differentia’ and ‘Rational Nexus’, and held that the twin tests are satisfied in the instant case, as all the temples covered by the Act – which are important pilgrimage places for Hindu – form a distinct class and the object of the enactment – which is renovation and effective management of the said temples – is reasonable. As it does not suffer from ‘Manifest Arbitrariness’, it is not violative of Article 14, the Court said.

    The Petitioner argued that the Act took over all the temples belonging to the “Sanatan-Dharma Sampradaya”, and as per the Hindi translation of the Constitution, “Denomination” in Explanation 2 of Article 25(2)(b) translates to “Sampradaya”. This translation was linked with Article 26, and it was stated that all religious denominations – which translates to sampradayas – have freedom to manage their religious affairs. It was further argued that Article 25(2)(b) makes it clear that a temple of one sect of the “Sanatana-Dharma Sampradaya” will not deny entry to people from other sects from the same Sampradaya, and a religious denomination can maintain a public temple, when a temple’s origin is lost in antiquity; and a long period of uninterrupted administration of the temple would show that it belonged to the administrators. He says that the respondents agree that the temples of the Act were managed by religious denominations. He placed reliance on Ratilal Panchand Gandhi v. State of Bombay [AIR 1954 SC 388] which held that any law, which takes away the right of administration altogether from a religious denomination, and vests it in any other secular authority, would result in violation of the right guaranteed by Article 26(d) of the Constitution. He submitted that under the cloak of “better management”, the State can’t take over the temple completely. Placing reliance on Dr. Subramanian Swamy vs State of Tamil Nadu and Ors. [(2014) 5 SCC 75], he submits that certain rules need to be framed which lay down the circumstances in which some provisions can be exercised by the State, but the Act fails to contemplate the same. It was further submitted that one of the objectives of the Act, which is to “rejuvenate the temples” of the Sanatana Dharma, is violative of Article 25.

    Per Contra, the Respondent-State contends that violation of Article 26 can’t get examined as the Petitioner did not place any evidence to prove that Kedarnath and Badrinath temples belong to any religious denomination. It was further contended that Article 26 relates to private temples and not public temples, and is not for individuals but religious denominations. The onus was on the Petitioner to establish the religion denomination(s) which founded any of the 4 dhams. Article 26(b) does not get violated as the Act only regulates secular matters and does not interfere in the matters of religion, rather it protects it. Kedarnath and Badrinath temples were already under the ambit of the 1939 Act, which was the law till it was repealed by the 2019 Act. Sections 32(7) and 34(5) of the Act bring transparency in the financial matters. Customary and hereditary rights of the priests have been recognized in the Act. 

    The Hon’ble Court examined the scope of Articles 25 and 26, observed that they are available to all faiths, including Hindus. Their protection is not limited to matters of doctrine or belief, but rituals and ceremonies which are integral parts of that religion also, which would be decided on a case-to-case basis. The Court emphasized on restrictive interpretation of the word “Religion” used in Articles 25 and 26. It observed that denominational rights can’t diminish Article 25(2)(b). Rights – which are strictly denominational – will prevail when diminution is not under the ambit of Article 25(2)(b). Article 26 does not create a new right; it just allows continuance of an existing right. The Court pointed out that Article 26(b) protects only the affairs in the matters of religion, and not other affairs. Citing the Shirur Mutt case, the Court pointed out that managing the expenses and administering the property are of secular nature and hence can be regulated by the State, which can be seen from the difference in the language of clauses (b) and (d) of Article 26, but 26(d) can only regulate and can’t completely take away the right of the denomination.

    The Court observed that the Petitioner’s pleadings were silent regarding the identity of the religious denominations who were managing the 4 dhams and whose Article 26 rights are being infringed, without which the alleged violation can not be argued. It went on to lay out what Hinduism and Sanatan Dharam meant, pointed out how it is progressive and revolutionary, and how all Hindus have faith in Sanatan Dharam. The Court asserted that Section 2(1) of the Act which defines “Hindu religion” and 2(w) which defines “temple” can neither be read in isolation, or independent of the relevant provisions of the 2019 Act, nor be construed to mean that Hindus having faith in the Sanatan Dharma constitute a religious denomination, and that the believers of a particular religion are to be distinguished from denominational worshippers. The former is also entitled to protection under Articles 25 and 26, except clauses (b) and (d) of Article 26, which is available only to the latter. Hence, the Court rejected the argument of the Petitioner that Hindus believing in Sanatan Dharam form a religious denomination for the purposes of Article 26 and said that Mutts can’t be equated with the 4 dhams. Consequently, it was held that no right is available, under clauses (a), (c) and (d) of Article 26, to manage the Char Dham temples as they are not established by a religious denomination.

    On the Petitioner’s plea that ‘Podhu Dikshitars’ were declared a religious denomination by the Hon’ble SC in Subramanian Swamy (2014), the Hon’ble HC pointed out that the Apex Court did not examine whether they belonged to a denomination or not, it is only because they were administering the temple, which was in existence since times immemorial, and were earlier held to be a religious denomination by the Division Bench of the Madras High Court, in Marimuthu Dikshitar v. State of Madras [(1952) 1 MLJ 557] which order had attained finality, that the order passed by it was held to be res judicata in subsequent proceedings. The Hon’ble HC also stressed that Subramanian Swamy (2014) can’t be interpreted to be contrary to the Constitution Bench judgment in S. Azeez Basha and Ors. v. Union of India [AIR 1968 SC 662] wherein the words “establish and maintain” in Article 26 were held to be conjunctive; and it was held that only such institutions, which were established by a religious denomination, could be maintained by it. It was also held that only the ratio – which has to be read in that particular context – is binding, and not everything which flows from the judgment. The Court went on to say that the Fundamental Right, under Article 26(d), ceases once the right to administer a temple/property is lost, and as the administration of Badrinath and Kedarnath temples are with the State since 1939 – due to the 1939 Act, no violation of 26(d) can be asserted.

    The Court opined that there is a presumption that a legislation is constitutional, until proven otherwise, and that the onus to prove it unconstitutional is always on the person who is challenging the constitutionality. Various sections of the Act were pointed out by their Lordships to point out that there is transparency in the financial matters, and that there is a mechanism for regular audit.

    On Gangotri Dham Temple, the petitioners stated that it has been managed and renovated by Semwal Brahmin Community since times immemorial and the ‘Sri 5 Temple Committee’ manages the affairs on a day-to-day basis. It was stated that the 2019 Act violates the denomination’s right to administer and control, under Article 26, and that this Temple’s case is different from that of Kedarnath and Badrinath, as it did not come under the ambit of the 1939 Act, and hence its right to administer was never lost.

    Per Contra, the respondents submitted that neither there was any substantive proof adduced by the petitioners on the claim of the Semwal Community being a religious denomination, nor was there any Judicial Declaration, as in the case of the Podu Dikshitars in Subramanian Swamy (2014). It was also claimed that due to the 1939 Act, the Temple came under the management of ‘Tehri Durbar’, where the Purohits were also given representation, but the secular activities were not under their control. It is only in 2002 that these Tirth Purohits established a society to manage both the religious and secular activities of the Temple.

    The Hon’ble Court traces the meaning of the term ‘denomination’ as a distinct class or collections of individuals called by the same name and the term 'religious denomination' as a collection of individuals having a system of belief, a common organization, and designation of a distinct name. As per the guidelines laid down in S.P. Mittal v. Union of India [(1983) 1 SCC 51], the Court observed that a religious denomination must satisfy three requirements:

    1. it must be collection of individuals who have a system of belief or doctrine which they regard as conducive to their spiritual well-being, i.e. a common faith;
    2. a common organization; and
    3. designation of a distinctive name. It necessarily follows that the common faith of the community should be based on religion, and that they should have common religious tenets, and the basic cord which connects them, should be religion and not merely considerations of caste and community or societal status.

    The petitioners failed to place on record any such peculiar tenets to themselves.

    The Court held that the evidence placed before them by the petitioners only shows that the community were priests in the temple for considerably a long time. On the contrary, there was material which showed that the administration and management was under the Tehri Darbar, as claimed by the respondents, until the Samwal Community establishes a society in 2002. Even otherwise, because it is proved that the management was under the Tehri Darbar from 1939, they did not have a property whose protection they are seeking. For the above reasons, their lordships declined to give protection to the petitioners under Article 26(d).

    On the Act being ultra-vires Article 25, the Petitioner argued that by virtue of Section 2(d) of the Act, all activities are under the management of the ‘char dham board’ i.e. State Control, and it interferes with religious matters of all services, under the garb of secular activities. He went on to say that State has the power to remove/appoint the priests, which is violative of Article 25.

    The respondents would contend that the activities are secular in nature and in no way interfere with religious matters, and hence the Act is intra-vires Article 25. It was further said that the appointment of priest mechanism of the 2019 Act is akin to the 1939 Act.

    The Hon’ble Court opines that administration of a temple, or exercise of disciplinary control over priests/trustees, are not religious activities, but primarily secular in nature. If the temple had belonged to a religious denomination, then the State could not have administered it, but that is not the instant case. The appointment of priests/archakas are secular activities, even though they perform religious functions after appointment. This appointment/removal can only be done on the basis of the grounds mentioned in the Act, and not as per the whim and fancy of the CEO. The inspection power conferred on the CEO for satisfying himself/herself that the provisions of the Act are in place, subject to the customs and rituals, does not amount to interference with religious practices. Collection and distribution of money, even though given as offerings to the deity, is not a religious practice. Installation of Hundis, for collection of offerings made by devotees inside the temple, does not violate the religious rights of the priests of the temple in any manner, even though they are denied any share of the offerings made in the Hundis. The endeavor to rejuvenate the temples also does not interfere with religious practices. The various secular activities, referred to hereinabove, are statutorily prescribed to ensure smooth conduct of the Char Dham yatras for the benefit of pilgrims, and hence, the Hon’ble Court rejects the contention of the Petitioner.

    On Article 31-A(1)(b), the Petitioner argued that the State can take over the property “for a limited period”, and not an indefinite period, which the impugned Act intends to do. He, inter-alia, relied on Subramanian Swamy (2014) which stated:

    Expropriatory orders should be construed strictly as it infringes the fundamental rights of citizens, and divests them of their legitimate rights to manage, and administer the temple for an indefinite period; supersession of the rights of administration cannot be of a permanent and enduring nature; its life should be reasonably fixed so as to be co-terminus with the removal of the consequences of mal-administration; the objective, of taking over the management and administration, is not the removal and replacement of the existing administration, but to rectify and stump out the consequences of mal-administration; and the power to regulate does not mean the power to supersede the administration for an indefinite period.

    He also placed other judgments to argue that the said Article deals with all properties and not just agrarian or industrial. Respondents contended that the Article deals with private properties and the property in question is a Public temple.

    Hon’ble Court examined the scope of Article 31-A(1)(b). It observes that the Act indeed vests the administration with the State for perpetuity, and because of this, it will not be saved by Article 31-A(1)(b), if it falls foul of any of the provisions of Part-III of the Constitution. As the Act violates no Fundamental Rights, Article 31-A(1)(b) is not applicable here. 

    The Court pointed out that the properties belonging to the deities remain to be so, and only the possession shall be with the Board. Section 22 of the Act says that all properties in the possession of the Board stand transferred to it. The Court opines that to save it from unconstitutionality, this Section must be read down, to thereby ensure that Part-III of the Constitution is not violated. The Court held that:

    The words “shall devolve” in Section 22 shall be read as “devolve on the Char Dham and shall be maintained by the Board”. Likewise, the words “may further acquire land”, in the proviso thereto, shall be read as “may further acquire land on behalf of the Char Dham”. When so read, the legislative intent that the properties of the Char Dham temples shall continue to vest in it, as declared in Section 4(2) of the 2019 Act, would be given effect to; and the power of the Board would thereby be confined only to the administration and management of the properties of the Char Dham Devasthanam. When so read, Section 22 and its proviso would be saved from being struck down as ultra vires the provisions of the Constitution.

    After reading it down, the Court dismissed the petitions by declaring that the challenge to the validity of the 2019 Act, on the ground that it violates Articles 14, 25, 26 and 31-A of the Constitution of India, must fail.