The bench comprising of the Chief Justice Ramesh Ranganathan and Justice R.C. Khulbe today dismissed a PIL filed by BJP leader Dr. Subramaniam Swamy challenging the constitutional validity of Act. The Court, however, read down Section 22 of the Act.
Article 26 of the Constitution confers freedom to manage religious affairs and, thereunder, subject to public order, morality and health. It provides that every religious denomination or any section thereof shall have the right :-
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.
The State contended that Hindus professing Sanatana Dharma cannot be called a religious denomination; the mere fact that the temple is a Hindu temple would not bring it within the ambit of Article 26 of the Constitution. “Hindu Dharma” and “Sanatana Dharma” are synonyms, submitted the State.
According to it, to complain of violation of their fundamental right under Article 26, the following conditions must be satisfied:
(i) the person claiming the right under Article 26 must be a religious denomination or a section thereof;
(ii) the said religious denomination should have established the religious institution of which it claims a right to maintain;
(iii) the said denomination must be managing its own affairs with respect to religion;
(iv) such management must be by a denomination, and not by an individual;
(v) only then would the said denomination have the right to acquire moveable and immovable properties;
(vi) the right of the religious denomination to administer its property can be regulated by law;
(viii) these facts must be specifically pleaded in the Writ Petition; and in the absence of any such plea, no contention regarding violation of Article 26 can be examined.
The court, referring to various Supreme Court judgments in this regard, concluded that, while any sect or sub-sect, professing certain religious cult having a common faith and common spiritual organisation, may be termed a religious denomination, no caste, sub-caste or sect of the Hindu religion, who worship mainly a particular deity or god, can be termed as such. It said:
Believers of a particular religion are to be distinguished from denominational worshippers. Thus, Hindu believers, in general, including those of the Shaivite and Vaishnavite form of worship, are not denominational worshippers, but form part of the general Hindu religious form of worship. (Indian Young Lawyers Association). As the believers of the Shaiva form (or the Vaishnavite form) of worship are not a denominational sect or a section thereof, but are Hindus as such, they are entitled to the protection under Articles 25 and 26 of the Constitution, but not to the protection, in particular of Clauses (b) and (d) of Article 26, as a religious denomination in the matter of management, administration and governance of the temples under the Act. (Sri Adi Visheshwara ).
The Court observed that it is no even the case of Dr.Swamy that any of the Chaar Dhaam temples have been established by a religious denomination and consequently 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. It added:
“By the use of the word “such” in Article 26(d), the word “property” referred to therein, is the “property” referred to in clause (c) of Article 26 in terms of which the religious denomination has been conferred the right to own “and” acquire property. The words,” establish and maintain” in Article 26(a) must be read conjunctively, and it is only institutions which a religious denomination establishes which it can claim to maintain. The right, under clause (a) of Article 26, is available only where the institution is established by a religious denomination, and it is in that event only that it can claim to maintain it. ” (Para 91)
The Court also explains the concept of ‘Hinduism’ and ‘Sanathana Dharma’ in its judgment. It further observed:
Even if this contention, that these Chaar Dhaam Temples are being managed by a religious denomination of Hindus, professing and having faith in Sanatana Dharma, is presumed to have some force, a bare reading of Sections 3(1) and (2) of the Act would show that it is only persons, who follow Hindu Religion, (which is defined in Section 2(l) to mean such sect of Hindus professing Santhana Dharma or having faith in it), who can be nominated as the Chairman and members of the Board, to manage the secular affairs of the Chaar Dhaams and other temples referred to in the 2019 Act.
The rights conferred by Article 26 are not unqualified. Where the denominational rights would substantially diminish Article 25(2)(b), the former must yield to the latter. However, when the ambit of Article 25(2)(b) is not substantially affected, the rights of a “denomination”, as distinct from the rights of the “public”, may be given effect to. However, such rights must be “strictly” denominational in nature. Since the right granted under Article 26 is to be harmoniously construed with Article 25(2)(b), the right to manage its own affairs in matters of religion, guaranteed by Article 26(b) in particular, is subject to laws made under Article 25(2)(b) which throw open religious institutions of a public character to all classes and sections of Hindus
Article 26 does not create rights in any denomination which it never had. It merely safeguards and guarantees continuance of an existing right which such denomination, or the section, had. If the denomination never had the right to manage the property of a temple, it cannot claim protection under Article 26.
If the affair, which is controlled by the statute, is essentially secular in character, Article 26(b) cannot be said to have been contravened. Whenever a claim is made on behalf of the religious denomination, that the fundamental right guaranteed to it to manage its own affairs in matters of religion is contravened, it is necessary to consider whether the practice in question is religious, or the affairs in respect of which the right of management is alleged to have been contravened are affairs in matters of religion. If they are, then, of course, the rights guaranteed by Article 26(b) cannot be contravened.
In regard to 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. On the other hand, as regards the property which a religious denomination is entitled to own and acquire, it has undoubtedly the right to administer such property, but only in accordance with law. This means that the State can regulate the administration of such properties by means of laws validly enacted.
The law referred to in Article 26(d) must, therefore, leave the right of administration to the religious denomination itself, subject to such restrictions and regulations as it might choose to impose. A law which takes away the right of administration from the hands of a religious denomination altogether, and vests it in any other authority, would result in violation of the right guaranteed under Clause (d) of Article 26.
As long as the law does not totally divest the administration of a religious institution or endowment, by a religious denomination, the State has the general right to regulate the right of administration of a religious or charitable institution or endowment; and such a law may choose to impose such restrictions the need for which is felt the most, and to provide a remedy therefore.