Constitutional need for regulation of temples

Articles 25 and 26 guarantee a zone of freedom for individual religious conscience, but also permit the State to enact laws for social reform.

One of the longest-standing debates in Indian constitutional law and politics has been around whether and to what extent the State should control the affairs of religious and charitable institutions. From before Independence and after, Hindu religious institutions, for example, have been subject to a complex and layered regulatory mechanism. At present, this takes the form of umbrella enactments called The Hindu Religious and Charitable Endowments Act, which are enacted by different states.

An element of contemporary secularism is a separation of the State and religion. (Representational Photo/ANI)

Opponents of this regulatory framework gather under the banner of “free the temples,” and question why the State needs to be involved in questions of faith, and of the administration of the institutions of faith. At first blush, this is a fair question: An element of contemporary secularism is a separation of the State and religion.

In other countries, the relationship between the State and religious institutions is much more light-touch and is limited to overarching questions of tax law and jurisdiction in case of offences.

Religious institutional autonomy, in other words, is given far greater importance.

When the religious freedom clauses of the Constitution were being debated, Ambedkar observed that the conception of religion in India was much wider than its counterpart in the West: From birth to death, religion claimed a vast domain of an individual’s life, including conditions and obligations of marriage, inheritance, and so on.

Consequently, Ambedkar noted, unless constitutional protection was limited to that which was “essentially religious”, a vast swathe of the State’s social reform agenda risked being declared unconstitutional, and citizens’ civil rights left to the mercy of the diktats of religious institutions.

Ambedkar’s concern was born out of personal experience. As a Dalit leader, he — alongside others — had fought many a battle against social discrimination cloaked in the garb of religious diktat.

Two battles, in particular, stood out: for the right to drink from the public wells (which were often attached to temples), and indeed, for the right to enter temples on a non- discriminatory basis.

The colonial court had denied him and others relief, and the Constituent Assembly was determined that the new constitutional order would not replicate and re-entrench the same hierarchies that had existed in the times to come.

Consequently, Articles 25 and 26 of the Constitution — which deal with religious freedom and State control — are very carefully worded: They guarantee a zone of freedom for individual religious conscience, but also permit the State to enact laws with the aim of social reform; they limit the rights of religious denominations strictly to matters of religion.

Indeed, the foresight of this constitutional framework was demonstrated in the early years of the Constitution, when temples that wished to continue discriminatory practice regarding the right of entry, attempted to invoke their freedom as “religious denominations” to do so. These arguments were repelled by the Supreme Court, invoking the social reform clause, as well as overarching constitutional principles.

One other factor weighed with the early legislators: Over the years, temples and religious and charitable endowments had acquired vast amounts of wealth, which took them outside the domain of strictly private bodies, lending them a quasi-public character, and thus within the regulatory domain.

It would be incumbent upon the State to ensure that there was no misappropriation or misuse of funds by those who controlled these establishments.

It is obvious that these conditions continue to prevail, even today. For this reason, Ambedkar’s observation in the Constituent Assembly has aged well, and demonstrates why institutional autonomy in this regard must be subject to constitutional norms and principles.

Of course, that does not mean that the laws in question are beyond cavil. Many of the state laws set up a dense web of bureaucracy and control that, as a matter of policy, is questionable; at the end of the day, what is important is that basic constitutional norms are complied with, and that the community of believers is not swindled.

The minutiae of these laws, thus, can be debated from the perspective of whether or not they adequately serve those purposes. This, however, is a question about the wisdom of policy; the constitutional need for regulations remains.

Gautam Bhatia, a Delhi-based advocate, is the author of Offend, Shock or Disturb: Free Speech Under the Indian Constitution. The views expressed are personal

(This piece is part of this fortnight's debate, titled “Who Should Govern Temples?" The opposing side of the debate can be accessed here)