Public Interest Litigation against the Bodh Gaya Temple Act 1949

(from: The Sikkim Times, Published on the Buddhist Channel March 27, 2012)

Darjeeling, India -- Shri WANGDI TSHERING s/o Late Shri Mingyur Tshering, aged 77 years and a faithful follower of Buddhism has filed a Public Interest Litigation (PIL) in the Hon'ble Supreme Court of India for handing over the management of The Bodh Gaya Temple over to the hands of Buddhists as The Bodh Gaya Temple Act 1949 which expressly vests control of the most sacred temple of the Buddhists into the hands of Hindus is ultra vires Article 25, 26, 29 and 30 of the Constitution of India.

The PIL filed by Shri Wangdi Tshering through Advocate Shri J P Dhanda has been listed for hearing on 13-02-2012 in the Honorable Supreme Court of India.

The Bodh Gaya Temple in the state of Bihar is the holiest place for all the Buddhists for it was here that Lord Buddha attained enlightenment and is regarded as the birthplace of Buddhism religion. It can be called the Mecca of Buddhism but this very sacred temple is controlled by Hindus by way of The Bodh Gaya Temple Act 1949. That in the past Buddhists, Devotees, Monks and common people from all over India agitated in Bodh Gaya for many years against the illegality of The Bodh Gaya Temple Act 1949 with even self immolation bids by monks but to no avail. Therefore, it was realized that no Government agency or the authorities that be are going to redress this illegality and grievance of the Buddhists.

The petitioner, Shri Wangdi Tshering who is a public spirited person, an old Buddhist as also an educated man felt deeply the injuries caused to the feelings of the Buddhists. At the same time the petitioner realized that it is a public cause and individuals cannot make much efforts much beyond what has already been made by way of agitations. It was in these circumstances and for the common cause the petitioner has knocked the doors of the Apex Court by way of a Public Interest Litigation.

The relevant provisions of The Bodh Gaya Temple Act 1949 being challenged are as given below :

That the section 3(1) of the Bodhgaya Temple Act, 1949 reads:-

3(1) As soon as may be after the commencement of this the 1 (State) Government shall constitute a committee as hereinafter provided and entrust it with the management and control of the temple land and the properties appertaining thereto.

3(2) The committee shall consist of a Chairman and 8 members nominated by the (1) (State) Government, all of whom shall be Indians and of whom four shall be Buddhists and 4 shall be Hindus including the Mahanth.

Provided that if the Mahanth is a minor or of unsound mind or refuses to serve on the committee, another Hindu Member shall be nominated in his place.

3(3) The District Magistrate of Gaya shall be the Ex- Officio Chairman of the committee: Provided that the 1 (State) Government shall nominate a Hindu as Chairman of the committee for the period during which the District Magistrate of Gaya is non-Hindu.

Articles of The Constitution of India which are hit by The Bodh Gaya Temple Act 1949 are as given below :

Article 25 : Because the Right to Freedom of Religion is a Fundamental Right as enshrined in Article 25 of the Constitution of India. Article 25 (1) Guarantees to every person, and not merely to the citizens of India, the freedom of conscience and the right freely to profess, practice and propagate religion.

Because under Article 25 of the Constitution of India the rituals and observances, ceremonies and modes of worship considered by religion to be its integral and essential part are also secured.

Article 26 : Because Article 26 of the Constitution of India provides freedom to manage religious affairs. It reads- Subject to the public order, morality and health, every religious denomination or any section thereof shall have the right:

a. to establish and maintain institution for religious and charitable purposes;

b. to manage its own affairs in matters of religion;

c. to own and acquire moveable and immovable property;

d. to administer such property in accordance with law.

Because the Article 26 of the Constitution of India deals with a particular aspect of the religious freedom. Under this Article every religious denomination or a section of it has the guaranteed right to establish and maintain institutions for religious and charitable purposes and to manage in its own way all affairs in matters of religion. Rights are also given to such
denomination or a section of it to acquire and own moveable and immovable properties and to administer such properties in accordance with law.

Article 29 : Because Article 29 of the Constitution of India provides protection of Interests of minorities. As indicated above Buddhist Community is a minority community and its interests are requested to be protected. But the particular provisions i.e., Section 3 (3) of the The
Bodhgaya Temple Act, 1949 is ultravires the provisions of the Constitution of India under Article 25, 26 and 27.

Article 30 : Because Article 30 of the Constitution of India provides Right of minorities to establish and administer educational institutions. The Buddhist community is a minority community and as the protection of their rights to establish and administer the Educational Institutions similarly the Buddhist community has a right to head their own places of worship
like the Bodhgaya Temple. But the great injustice is being perpetrated as the section 3 (3) of the Bodhgaya Temple Act, 1949 ultravires the Constitution. It provides that a Hindu instead of Buddhist will be the Chairman of the Bodhgaya Temple.

Hence Shri Wangdi Tshering has approached the Hon'ble Supreme Court with a prayer to:

a. issue an appropriate writ /order or direction directing the quashing of Section 3(3) of the The Bodhgaya Temple Act, 1949;

b. issue an appropriate writ/order or direction directing that the Head of the Bodh Gaya Temple will be a Buddhist and not a Hindu;

c. issue an appropriate writ/order or direction directing the necessary amendment in the The Bodhgaya Temple Act, 1949 in Section 3(3) substituting the Chairman of the Committee administering the Bodhgaya Temple as a Buddhist and not a Hindu;

d. issue an appropriate order or direction for handing over the management of the Bodh Gaya Temple including the Mahabodhi Tree and Vajrasan as defined in section 2 of the Bodhgaya Temple Act 1949 to the Buddhists.