September 1, 2020

Regulation of Temples: An Aberration in a Secular State

Written By: Siddharth Acharya

John Adams once said, “… a Constitution of Government once changed from Freedom, can never be restored. Liberty, once lost, is lost forever”.[i] It is true that the Government is the entity that regulates the functioning and relationships between one country and another, between a state and its subjects, between a state and another state and between one individual and another. In the pursuit of exercising this power, at times the Government exceeds its governance over the very constitutional rights and liberties which are enshrined in the Constitution for the purpose of safeguarding the rights of its subjects in the interest of justice and equality. In the particular instance of violating such a Constitutional right, when the power of control and governance overshadows the rights and liberties of the subjects of the Constitution, it is important that an intervention is made by the Judiciary which is entrusted with the duty of protection and preservation of the rights and liberties of the people. Article 25 of the Indian Constitution not only confers a fundamental right on every person to freely propagate any religious belief but it also provides freedom to profess all the activities prescribed and sanctioned by that religion subject to certain restrictions. There is a wide safeguard provided and guaranteed by the Constitution whereby the word “to  practice” the  religion has been stated in Article 25. In order to ensure that the properties belonging to the various religious denominations are administered along with all essential rites and rituals prescribed by the said religion with complete autonomy, subject to certain restrictions, Article 26 has played a pivotal role in this regard. Article 26 (d) of the Constitution terms it to be a violation of a right if any law takes away the constitutionally granted right of such administration from the ambit of the religious denomination.

Every institution has the right guaranteed under Article 25 of the Constitution to practice and propagate freely, the religion of which the individual and her/his followers adhere to. Article 26 of the Constitution of India provides a religious de- nomination the right to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to own and acquire movable and immovable property and to administer such property in accordance with law. Subject to public order, morality and health, every religious denomination or any section thereof has the right to administer its property according to law. Hence, the administration of its property by a religious denomination has been placed on a different platform 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.

The language of the two clauses (b) and (d) of Article 26 bring out the difference between the two at the first instance. Regarding 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. However, regarding administration and functioning of a property which a religious denomination is entitled to own and acquire, it is certain from the intention of the Constitution of India that the right to administer such property is undoubtedly with the administrative body of the religious denomination, provided it is in furtherance of law. This would mean that the state can regulate the administration of a trust property by means of validly enacted laws; 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 the law. In the case of Commissioner Religious Endowments v. Lakshmindra Swaminar, it was stated that any law, which overpowers or takes away any right of administration as a whole from any religious denomination and vests it in any other secular authority, it would stand strictly in violation of the right guaranteed by Article 26 (d) of the Constitution.[ii]

The Supreme Court has held as follows:- “As regards Art. 26, the first question is, what is the precise meaning or connotation of the expression ‘religious denomination’ and whether a Math could come within this expression”. The word ‘denomination’ has been defined in the Oxford Dictionary to mean ‘a collection of individuals classed together under the same name; a religious sect or body having a common faith and organisation and designated by a distinctive name’.”[iii]

Hence, to invoke Article 26 of the Constitution, ‘Sevaks’ who are the people/staff working for the deity at a religious premise have to prove two facts that:-

  • They established the temple,
  • They have maintained the

The Supreme Court has laid down the distinction between right of ‘religious denomination’ to manage its affairs in matters of religion and to acquire movable and immovable property and to administer such property in accordance with law in the celebrated judgment in the Sri Shirur Mutt[iv]case. In Para (17) of the judgment, the Supreme Court has held as follows:-

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 that no legislature can take away, whereas the former can be regulated by laws that the legislature can validly impose. It is clear, therefore, that questions merely relating to administration of properties belonging to a religious group or institution are not matters of religion to which clause (b) of the Article applies. What then are matters of religion? The word ‘religion’ has not been defined in the Constitution and it is a term which is hardly susceptible of any rigid definition. In an American case[v], it has been said “that the term ‘religion’ has reference to one’s views of his relation to his Creator and to the obligations they impose of reverence for His Being and character and of obedience to His will. The above explanations and definitions stand strong to advocate the fact that the Articles 25 and 26 of our Constitution are based for the most part upon the Article 44 (2) of the Constitution of Eire and it is highly unlikely that the definition of ‘religion’ as stated above could have been in the minds of our Constitution-makers when they framed the Constitution. Religion is purely a matter of belief and dedication in one’s faith amongst individuals and the communities at large and not necessarily theistic. There are well-known religions in India like Buddhism and Jainism which do not believe in God or for that case in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines that are regarded by those who profess that religion is conducive to their spiritual well-being, but it would be incorrect to say that religion is nothing but a doctrine or belief. A religion may not only prescribe directives and rules for its followers to accept and abide, it might also prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion.

In a landmark case of Dr. Subramanian Swamy v. State of Tamil Nadu & Ors[vi], the Apex court expressed its firm support towards the administration of a property by a religious denomination stating that the control and management of a religious property must remain with the ones bestowed with the authority and responsibility to maintain and administer. The Government can have the general right to regulate and act in providing its support to the above- mentioned cause in the field of preserving law and order, health and sanitation, and various other welfare standards. However, it cannot seek indefinite control over the administration of any religious denomination.

It is pertinent to mention that in the famous judgment of Ratilal,[vii] The approach taken by the hon’ble Supreme Court was liberal, whereby it was not only faith, beliefs and ethical codes of conduct that were playing an integral part in professing a religion but also the rituals, ceremonies, and practices that played an essential role in the following and belonging to a certain religion.

In a matter dealt by a single bench of Calcutta High Court, Justice Bhagabati Prasad Banerjee wrote:

…The concept of Tandava  dance[viii]  was not a new thing which is beyond the scope of the religion. The performance of Tandava dance cannot be said to be a thing which is beyond  the scope of religion. Hindu texts and literatures provide [for] such dance. If the court started enquiring and deciding the rationality of a particular religious practice then there might be confusion and the religious practice would become what the courts wish the practice to be.[ix]

The above text makes it clear that the judicial system of our country is of the opinion that subject to certain mandatory restrictions, the control over administration and professing any religion should be bestowed on the religious denomination, not the government. Furthermore, Article 27 of the Constitution of India provides that no person shall 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 any religious denomination.

Articles 28, 29 and 30 of the Indian Constitution are in consonance with the abovementioned provisions of the Constitution. The Hon’ble Supreme Court in Aruna Roy v. Union Of India[x] held that there is no prohibition in imparting religious instructions, which clearly signifies that once religious knowledge is attained, the subjects to that religious belief may profess and practice the same. In a very popular case, also known as the National Anthem Case[xi], the Division Bench stated that a person may not sing the National Anthem if he has genuine conscientious religious objections. This depicts the seriousness allocated to the importance of freedom of religion promoted by the Indian judiciary. Article 29 and 30 hold the hands of the minorities and provide them with the strength and safeguards in the spheres of protection of their rights to establish and administer educational institutions which enable them, irrespective of their religious beliefs and language, to learn and profess any preaching or religious belief they desire. Judiciary has time and again played a pivotal role in protecting the freedom of religion and the religious denominations from falling in the hands of the government.

In the significant case of Sidhrajbhai Sabbai[xii], the minority Christian society which was running several primary schools along with a Teacher Training College in Gujarat was involved in a litigation with the State of Gujarat. The State heavily tried to interfere with the admission policy of the college and the matter was taken up in the Hon’ble Supreme Court, where the Court found that there was a severe contravention by the State in the rights of the college against Article 30(1). The Apex Court stated that the state may intervene in the aspects of health, sanitation, discipline and public order in improving the facilities provided to the college but none of it can prejudice the right conferred upon the college under Article 30 of the Constitution. The Court went further ahead in stating that the regulatory measures of the state could only be in the interest of the minority institution.

Articles 14, 15, and 16 of India’s Constitution providing religious freedom and right to equality are the backbone of all the above-submitted contentions. It is not essential to understand that the reading of the above Articles provides an overview of the framers’ intention. The same was evident from the reading of the text that freedom to practice and have faith in any religion is provided equally to the subjects of the Constitution. It is this freedom and equality provided to them under the Constitution that enables them to profess and administer the properties belonging to their religion in their own manner, subject to certain restrictions provided by our laws. But nowhere it can be inferred that the Government should be free to interfere and take absolute control over any religious denomination under the garb of regularising the administration and affairs of the premises of the religious denominations.

In the recent Sabrimala Temple[xiii]case, where the judicial intervention was requested, there were few contradictory opinions provided by the Hon’ble Judges. One of the opinions was that the exclusion of women from the temple effectively rendered their right under Article 25 meaningless and Article 25(1) protects the fundamental right of women between the ages of 10-50 years to enter the Sabarimala Temple and enables them to exercise their freedom of worship. Furthermore, it was stated that there was sufficient material to conclude that the exclusion of women from Sabarimala violated Article 25(1) and the Ayyappans’ custom of excluding women, who were between the ages of 10-50 years, from the Sabarimala Temple was unconstitutional. On the other hand, the other opinion was that the devotees of Ayyappa did not pass the constitutional test to be declared as a separate religious identity and the Ayyappas were Hindus. Hence it was stated that the temple’s denominational right to manage its own internal affairs, under Article 26(b), was subject to the State’s social reform mandate under Article 25(2)(b) which provides that the State can make laws to reform Hindu denominations. It was further stated that Article 25(2)(b) allows the State to make any law that opens a public Hindu institution to all ‘classes and sections’ of Hindus. The term ‘classes and sections’ were interpreted in a manner as to include the gendered category of women, thereby concluding that the Sabarimala custom of excluding women is subject to State mandated reform.

Contradicting the above-mentioned opinion, it was further stated that the constitutional morality in a secular polity, such as India, requires a ‘harmonisation’ of various competing claims to fundamental rights and the Court must respect a religious denomination’s right to manage their internal affairs, regardless of whether their practices are rational or logical. The instant case of Sabarimala Temple satisfies the requirements for beingconsidered a separate religious denomination and therefore the Sabarimala Temple is protected under Article 26(b), which provides it a right to manage its internal affairs and is not subject to the social reform mandate under Article 25(2)(b), which applies only to Hindu denominations. Further stating that in Article 26, denominational freedom of religion, is subject to ‘public order, morality and health’ and ‘morality’ (constitutional morality) must be understood in the context of India being a pluralistic society; therefore, the State must respect the freedom of various individuals and sects to practice their faith.[xiv]

We are not alien to the fact that since the British era, the desire to control the Hindu temples has been in the hearts and minds of the governments as the temples have stood strong as a source of revenue. In 2017, Dr. Satyapal Singh introduced a bill in the Lok Sabha to free administration of the temples from the government’s clutches. The bill emphasised on the state having no religion and being a secular entity. There has always been a widespread grievance that Hindu temples and religious charitable institutions are routinely taken under the clutches of the secular state in the name of maladministration, mismanagement and misappropriation of funds etc. whereas, on the other hand mosques and churches belonging to the minorities are exclusively administered and regulated by their respective communities exercising their right under Article 26. MP Dr. Satyapal’s bill in an emphasizing manner stated that the states under Article 25 shall not control any institution or property established maintained and administered for any religious purpose as the acts performed by the government under veil of controlling the temples are unconstitutional and discriminatory.

The landmark judgment of Sri Marthanda Varma (D) Thr LRs & Anr. v. State of Kerala & Ors., also known as the Padmanabhaswamy Temple Case,[xv] proved to be a consensus between religion and politics in the society wherein the rights of the royal family of Travancore were upheld in respect to the administration of Padmanabha- swamy Temple situated in Kerala which is also considered to be the richest temples in the country. By doing so the Supreme Court had set aside the verdict of the Kerala High Court wherein the Kerala Court had directed the State Government, that in order to take control of the temple, a trust be created. The hon’ble Supreme Court upheld the “Shebaitship” of the family of Travancore originally responsible for taking care of the temple and conferred upon them all the rights towards the administration of the property as the trustee, thereby bestowing upon them the rights over the property as a manager responsible for management, preservation, administration of the property and also the right to defend the property against all odds which is provided under the statute also. It can be clearly inferred from the above decision that the judiciary too stands for the rights and freedom of a person with respect to his religion as conferred upon him by the Constitution of India.

Since independence, the administration of the temples has been under the control of monarchs who have always been very closely affiliated to the ceremonies and rituals carried on as traditions in the temples, and there were some questions which were raised whenever the state tried to interfere to gain control over any religious denomination. If the State has professed itself as ‘Secular’ body, how can it affiliate itself with the administration and well-being of Hindu Temples? And will it be just for the State to utilise the specific wealth from the Hindu Temples and use it for its own purposes? These are some important concerns that need to be addressed. One of the most common justifications given for the above questions would be that the Devaswom board/committee of elected persons by the Government would only control and administer the secular actions/functions of the temples and the rest of the religious functions would be left unhindered. But the truth has always been that the above mentioned functions were inseparable and hence their control could not be diluted.

Therefore, in conclusion it can be stated that the right conferred upon a person by the Constitution cannot be violated by any government or administrative authority subject to exceptions whether the right pertains to the right to life, right to freedom and dignity, right to belief and profess any religion and hence, also the right to practice and administer the various religious denominations pertaining to that religion. However, this conclusion will attain legal significance only after the hon’ble Supreme Court of India decides the best judicial direction and conclusion to this debate of bestowing the power of control and administration on the side which constitutionally deserves so, by adjudicating in the matter of Jagannath Puri Case.

*Siddharth Acharya is an advocate practising in Supreme Court of India, Delhi High Court, District Courts and various Tribunals and Appellate Tribunals. His practice areas include Insurance Law, Banking Law, Commercial Arbitration and Public Interest Litigation. Siddharth Acharya has done his Law from Government Law College, Mumbai University in 2014 followed by Post Graduation Diploma in Securities Law and later on Masters in Business Laws from National Law School of India University, Bengaluru.


  1. [i]Adams, (1876), Familiar Letters of John Adams and His Wife Abigail Adams: During the Revolution (Combridge: The Riverside Press).
  2. [ii]AIR 1954 SC 282; P.Mittal v. Union of India (1983) 1 SCC 51.
  3. [iii]The Commissioner, Hindu Religious Endowments, Madras Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt AIR 1954 SC 282 : (1954) 1 SCR 1005
  4. [iv]AIR 1954 SC 282
  5. [v]Davis Benson, 133 U.S. 333
  6. [vi]Supreme Court of India, Civil Appeal No. 10620 of 2013.
  7. [vii]Ratilal Panachand Gandhi State of Bombay AIR 1954 SC 388.
  8. [viii]Tandava dance is a religious cult performance practiced by the Ananda Marg Sect. The use of lethal weapons and human skulls are a part of the dance.
  9. [ix]Acharya Jagadiswarananda Avadhuta Commissioner of Police Calcutta AIR 1984 SC 51 10
  10. [x](2002)6 SCALE 408
  11. [xi]Bijoe Emanuel V. State of Kerala,1986
  12. [xii]Rev, Sidhrajbhai Sabbai V. State of Gujarat, AIR 1963 sc 540
  13. [xiii]2018 SCC OnLine SC 1690
  14. [xiv]2017-20 © Center for Law and Policy Research and ( Writ Petition (c) No. 373 of 2006)
  15. [xv] SLP (C) No. 11295 of 2011 and SLP (C) No. 12361 of 2011

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