A broad overview of religious freedom in India portrays India’s secularism policy which does not maintain any distance between the government and religious institutions. The cliché of secularism in India, as we see it today, is that of a religion-state relation that encompasses state reformation of religion. When a religious community is fully capable of authorising its affairs in managing temple administration, there exists a complete state control of Hindu Temples leading to blatant abuse of power. The concept of secularism, unfortunately, fails to convey the real complexity of state-temple interactions. The underlying dynamics date back to the 1880s. Historically, states have exercised tight control over Hindu temples in South India. The shades of colonialism, which began when the British Raj took over Hindu temples, continue to date.

British Era: State control of Temples in the Southern part of India

It is incontrovertible to state that the dynastic rulers of Tamil land namely Pallavas, Cholas, Pandya, Vijayanagara Empire, Nayakas and Marathas have made great contributions towards dance, art, culture of temples in the Southern part of India. Emperors of Tamil land endowed the temples with jewellery and large tracts of agricultural lands. Further, this tradition was carried on by the Kings of Princely states such as Travancore and Mysore.

When the British colonised India, temples were brought under government control. Slowly, the management of religious institutions began to be vested under the scrutiny of the East India Company. Eventually, the British Raj took control of temples and their endowments in the Madras Presidency. Thereby, the British Raj introduced the Madras Regulation VII of 1817 to bring temples under government control mainly in the southern part of India. Much prior to the Madras Regulation VII of 1817, a very similar Regulation was passed in Bombay in the year 1827 and in Bengal, known as the Regulation XIX of Bengal in 1810.

However,  the involvement of the British in the administration of Hindu temples came under heavy attack from the ruling establishment in England on the ground that such involvement contradicts the precepts and practices of Christianity. The ruling establishment in England ordered that the British Government should withdraw from the administration of Hindu religious institutions. In view of the same, in February 1833, the British notified a directive of withdrawing its association with Hindu ceremonies and institutions.¹

Next came the Religious Endowments Act of 1863, which handed over temple administration to the trustees from the British government. For a brief period, trustees ran the temples following tenets applicable to temples until the British introduced The Madras Religious and Endowments Act 1927. When the department was set up in the 1920s, it was argued that temples desperately needed sovereign protection. In 1942, a non-official committee recommended that the board should come under government administration. Ironically, even after Independence, the government continued with temple takeover by passing the Hindu Religious and Charitable Endowments Act. Post-Independence, the Tamil Nadu government took control of temples and their funds through an act passed in 1951 called the Hindu Religious and Charitable Endowments Act.

To date, a large bureaucracy manages temple administration–which is the Hindu Religious and Charitable Endowments Department.² The existence of this bureaucracy in a secular state is defended by way of shallow and tedious arguments that temples are a public trust, for which the State of Tamil Nadu has direct responsibility. Unfortunately, the constitutionality of the aforesaid position has been upheld by the Apex Court in 1954.  The State of Tamil Nadu through the Hindu Religious and Charitable Endowments Department has complete influence on the institutional character of temples, shaping its temple affairs, having complete control of their finances and land holdings.

Judicial intervention in the administration of temples

Following the takeover of temple administration by the Hindu Religious and Charitable Endowments Department, the draconian provisions and constitutional validity of the Hindu Religious and Charitable Endowment Act, 1951 passed by the Madras Legislature were challenged in the Madras High Court and subsequently in the Supreme Court in The Commr, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC 282). The Act interfered with the management of the Math and its affairs. The Act conflicted with the fundamental rights guaranteed under the Constitution. Subsequently, many provisions of the 1951 Act were struck down by the Court.  Thereafter, with some changes, the Tamil Nadu Hindu Religious and Charitable Endowments Act was enacted in 1959. However, the 1959 Act again reproduced many draconian provisions. Subsequently, the amended Act of 1959 was struck down by the Madras High Court.

The new act abolished the Hindu Religious Endowments Board and vested its authority in the Hindu Religious and Charitable Endowments Department of the Government headed by a Commissioner. The role of a Commissioner, per se is, if the Government believes that any Hindu public charitable endowment is being mismanaged, the Government shall direct the Commissioner to inquire and bring the endowment under Government control.  The Act served as an inspiration for the neighbouring states of Andhra Pradesh, Karnataka, Telangana and Puducherry.  Thus, Tamil Nadu Government, be it, DMK or AIADMK, has pioneered the questionable practice of controlling 43,000 temples in the State. Over 19,000 important temples are directly "managed" by Government officials, in the absence of temple trustees.³

Indian Constitution is not quite upfront about religious freedom. This is mainly because Article 25 and Article 26 of the Constitution of India, were drafted by keeping in view of the then Madras Religious and Endowments Act 1927 which emphasized government control of temples. Article 25 of the Constitution of India envisages preventing the state from making any contravening law, empowering people’s will, where everyone would be free to practice any faith. Further, Article 26 of the Constitution of India grants fundamental rights to religious denominations. However, a seven-judge bench of the Supreme Court has laid down the test as to what constitutes a “denomination” in Shirur Mutt case. The issue of the denomination sector has undergone several legal scrutinies over the years with prolonged legal battles. The term ‘religious denomination’ is not defined anywhere in the Constitution. Therefore, the Supreme Court interpreted the term in a way they felt it necessary. It is indisputable that the interpretation given by the Supreme Court has led to a very strange law.

Paradoxically, religion itself isn’t entitled to the protection of Article 26, but sub-groups within the religion are protected under Article 26 of the Constitution. However, the Orissa High Court in Ramchandra Deb v. State of Orissa and the Madras High Court in Shirur Mutt case have pointed out that the followings of religion constitute their own denominational sector. The Court observed, “there are several religions in India such as Islam, Christianity, Zoroastrianism and Hinduism, it may not be wrong to take Hinduism and the members of that religion as constituting a religious denomination in a larger sense; if it should be taken in a limited sense, Adwaita, Dwaita, Vismshtadwaita and Saivite, maybe another classification and the members of each faith may be treated as members of one denomination.”⁴ It is imperative to point out that the aforesaid ruling has not been overruled by the Supreme Court.

Devastatingly, on multiple occasions, the Supreme Court has gone to the extent of holding that the management and administration of a temple is, in fact, a secular function. Further, it has been argued that the appointment of Archakas to the agamic temple is a secular matter. In Seshammal v. State of Tamil Nadu, the  Supreme Court observed that “the amendment to the HR&CE Act abolishing hereditary priesthood did not mean that the government intended to bring about any change in the rituals and ceremonies.”⁵ Further, the issue of the secular aspect was taken to extreme lengths when the Court ruled that “the state, by appointing temple priests, was exercising a secular function.”⁶ Subsequently, the Supreme Court in Adi Saiva Sivachariyargal v. Govt. of Tamil Nadu, observed that “the constitutional legitimacy, naturally, must supersede all religious beliefs or practices”.

The Hon’ble Court further held that “appointments should be tested on a case-by-case basis and any appointment that is not in line with the Agamas will be against the constitutional freedoms enshrined under Articles 25 and 26 of the Constitution.”.⁷ The Jagannath Temple issue is a classic example of how the state has assumed the role of religious functionaries. The Jagannath Temple Act, 1954 entrusted the committee appointed by the state for the seva pooja of Lord Jagannath. It was held that the seva pooja has both religious and secular aspects. The Raja of Puri challenged the Jagannath Temple Act, 1954 before the Supreme Court in Raja Birakishore v. The State Of Orissa. The Court observed that the performance of puja is a secular act and, therefore, the state is justified in regulating the secular aspect. Even though the performance of poojas which are an intrinsic part of religious duty considered to be essential religious practice, the Courts of this country have made the appointment of a priest to be a secular function.⁸

Every financial, administrative, economic and management practice associated with faith has become ‘secular’. The administration of the temple down South is controlled through Boards/Departments appointed by the State Government. As of date, the Governments of five southern states control 90,700 temples. In fact, Tamil Nadu Temple Trusts own 47,000 acres of land. The Government of Tamil Nadu alone controls 43,000 temples and 56 Mutts.⁹

Bhagwan Venkateshwara temple in Andhra Pradesh is administered by a board, constituted under the A.P. Charitable & Hindu Religious Institutions & Endowments Act, 1987 called the TTD Board consisting of a Chairman and members who are nominated by the State Government. The constitutional validity of this Act was upheld by the Supreme Court in A.S. Narayan Deekshitulu v. State of A.P 1996 AIR 1765. The Ramanatha Swamy temple at Rameshwaram, and the Meenakshi Amman temple at Madurai, both in the State of Tamil Nadu, are under the management and control of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. The Guruvayoor temple in Kerala is under the control of the Travancore Devaswom Board constituted under the Travancore Cochin Hindu Religious Institutions Act of 1950. It is imperative to point out that the ‘secularism’ in the Constitution of India, sought to subordinate the freedom of religion to other fundamental rights. Article 25 of the Constitution begins with, ‘Subject to the other provisions of this part’. Therefore, it is clear that the freedom to manage religious affairs as per Article 26 of the Constitution is subject to public order, morality, and to ensure that ‘secular’ reforms are not stalled. Further, Article 25(2) of the Constitution of India empowers the state to enact laws to regulate or restrict any economic, financial, political or other secular activity associated with religious practice.

Certain questions are not within the Judicial ambit

The question that one needs to ask at this juncture is would the Courts be at ease pondering on such intrinsic doctrines of religious issues for other religious institutions/classes? Why are the erstwhile controllers of temples side-lined? While Christians, Sikhs and Muslims have their system of checks and balances, why does the judiciary want Hindu temples to follow colonial-era laws? Is it possible to prove the existence of any religious practice by using doctrinal laws when the fundamental basis of religion itself is based on faith and belief? Is it possible to place evidence to support the existence of certain religious practices based on faith and belief? When freedom from government has worked well for other religions having the autonomy to run their institutions, why is the majority community arbitrarily regulated?

In my opinion, various questions are beyond the purview of doctrinal laws. As held in Marbury v. Madison, all judicial decisions have double nature—juridical and political. When there are various questions that are within the purview of a “political” nature, such questions are not fit for judicial adjudication.¹⁰ Similarly, there are various questions concerning faith and belief in the nature of religion that are not fitting for judicial interpretation/adjudication. The two most common rational behind this are that, the pragmatic rationale and the principled rationale. A rigid adherence to laws is not possible due to a lack of judicial competence to decide religious questions based on theological and ecclesiastical beliefs.¹¹ The danger of allowing a secular court to decide religious questions will enable state endorsement of one religion over another. The US Supreme Court in Robert L. Hernandez v. Commissioner of Internal Revenue 490 U.S. 680, 699 (1989), has held that “it is not within the judicial ken to question the centrality of particular beliefs or practises to a faith or the validity of particular litigants interpretations of those creeds…”¹² Further, Justice Indu Malhotra in Indian Young Lawyers Association v. The State of Kerala has rightly observed that “Judicial review of religious practices ought not to be undertaken, as the Court cannot impose its morality or rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practise one's religion according to one's faith and beliefs.”¹³

What is the way forward?

It is indisputable that the shades of colonialism are still prevalent in Hindu temples. Temples are continued to be looted, plundered and destroyed. The nuances of sovereign control of temples have resulted in mismanagement of Hundi resources, leading to corruption and destruction. An instant reality check is that, lately, agricultural land belonging to temples which are gifted by erstwhile families to the deity are becoming governmental properties. For this reason, by dragging the deity to the Court, the despair and plight of Hindu Temples in the Southern part of India are continuing.

For temples to be free from Boards/Devaswom/Departments, it is imperative to internally structure their functioning, especially with regard to representatives constituting a committee subject to conditions that are integral to Dharmaśāstras. Kamakhya Devi temple model of governance is a fine example pertaining to the administration and governance of the temple. Maa Kamakhya Devalaya is considered one of the most sacred and oldest of the 51 Shakti Peethas. It is the centrepiece of the widely practiced, powerful Tantrik Shaktism cult in India. The management and administration of the temple have been under two ‘Dolois’ who are elected by the ‘Bardeoris’. The Bardeuri Samaj consists of adult male members belonging to four families of Bardeuries namely Burha Bardeuri, Deka Bardeuri, Hota and Bidhipathak. They have the customary right for running the religious as well as management of Kamakhya Devalaya through the elected representatives i.e. the Dolois since the time of the Ahom kings.

A glance at the management of the temple indicates the presence of a well-defined hierarchy of temple servitors who have caste affiliations as well as a set of functions to perform within the temple.¹⁴ Bardeoris are four clans and each adult of four clans can stand for the election of the post of two Dolois. The person getting the highest votes shall become the ‘Dangor Doloi’ and the second highest becomes the ‘Xoru Doloi’. The two Dolois shall have five-year tenures. The traditional system of ‘doloi’ from among the Bordeori community came to a halt in the year 1996 when the Kamakhya Debutter Board (under Congress Government) forcibly took over the authority from the ‘doloi’. Subsequently, in 2011, the Gauhati High Court put the Samaj back in control and instructed that two ‘dolois’ from Bordeuri community be elected to look after the affairs and management of the temple. Thereafter, in 2015, the Supreme Court upheld the judgement of the Gauhati High Court. 

At a time when the country is making the right move with its mega privatisation in coming years, it is imperative to state that the State Governments and Courts should not act as spokespersons of Dharmic practices. It is a disgrace that the so-called secular State Governments of Tamil Nadu, Kerala, Karnataka, and Andhra Pradesh have looted the temples while the majority community is watching in stony silence.

1. Deborah Sutton, Antiquity, and Colonial Custody of the Hindu Temple in British India, Cambridge University Press, Modern Asian Studies, January 2013, vol. 47, no. 1, pp. 135- 166.
2. Franklin A. Presler, The Structure and Consequences of Temple Policy in Tamil Nadu, 1967-81, Pacific Affairs , Summer, 1983, Vol. 56, No. 2 (Summer, 1983), pp. 232-246.
3. Statistics are taken from an expert committee report which was set up in taking repair work at about 43,000 temples which are under HR&CE department.
4. AIR 1959 Ori 5
5. (1972) 2 SCC 11
6.  (1972) 2 SCC 11
7. W.P (Civil) No. 354 of 2006.
8. 1964 AIR 1501
9. https://www.financialexpress.com/india-news/explained-the-curious-case-of-47000-acres-of-tamil-nadus-missing-temple-land/2273212/
10. 5 U.S. 137 (more)1 Cranch 137
11. https://bridges.monash.edu/articles/journal_contribution/The_Religious_Questions_Doctrine_Addressing_Secular_Judicial_Incompetence/19617627
12. 490 U.S. 680, 699 (1989)
13. Sabarimala Case; (2019) 11 SCC 1
14. Anupama Ghosh, Land Grants To Kamakhya Temple Of Assam [A.D. 1565-A.D. 1863] A Study Of The Changing State Policies, Indian History Congress Vol. 71 (2010-2011), pp. 300-311 (12 pages), https://www.jstor.org/stable/44147497.

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