How Hinduism was nationalized
Typical
debates on secularism today tend to bypass issues on the state's
intervention in religious matters, particularly in Hindu temples
Suhrith Parthasarathy
On
26 November last year, what is today known as Constitution Day, home
minister Rajnath Singh described the term “secular” as the “most misused
word” in the country’s political discourse. Additionally, he claimed
that the country’s founding fathers had found the need for inclusion of
secularism as a specifically guaranteed tenet as superfluous to the
sustenance of Indian democratic polity.
Singh’s
intentions, in making these assertions, were quite clear. This was
really an effort at obfuscating what were—and are—grave concerns about
the present Indian government’s majoritarian policies, specifically its
claim for an Indianness built on a supposed monolithic cultural edifice.
The comments quite rightly drew the ire of the opposition.
But
while Singh’s goals may have been grossly flagrant, the idea of
debating what Indian secularism really means must hardly be frowned
upon. After all, secularism, much like equality or liberty, is an
interpretive concept.
As it happened, during the
early years of independence, and indeed, during the making of India’s
Constitution, secularism and its real purport and meaning was a hotly
contested topic. The debates during the time centred largely on
important conceptions of what religion meant, what the government’s role
in religion ought to be, and whether India required a strict wall of
separation between the state and religion. The answer to the final
question invariably acquired a sense of reasonable consensus among the
debaters.
It was clear to most that unlike
western notions of the term, the Indian state, even if it adopted a
commitment to secularism, simply couldn’t afford to embrace a completely
non-interventionist role towards religion. This was because, in India,
religion tended to pervade society in a manner that often had serious
implications for one’s basic civil rights.
But to what extent must this intervention extend?
Typical
debates on secularism today tend to bypass issues concerning the
state’s intervention in religious matters, particularly in Hindu
temples. Most discussions in popular conversation revolve around what
are viewed as core political questions—such as subjects concerning the
guarantee from the state of equal co-existence of different religious
faiths, the ability of government to bring forth social reform and
welfare, and the protection of personal and private rights of minority
groups.
Indeed, the manner in which we answer
questions raised on each of these issues would inform us greatly on our
ability to sustain ourselves as a liberal democracy. But the question of
where governmental intervention in religion ought to begin, and where
it ought to end, especially in the state’s management and administration
of Hindu institutions, is critical to articulating the country’s
approach to the freedom of conscience and religion.
For
instance, in January 2014, in ruling on the validity of a seemingly
perpetual takeover of the Sri Sabanayagar Temple in the town of
Chidambaram by the Tamil Nadu government, the Supreme Court said, “Even
if the management of a temple is taken over to remedy (an) evil, the
management must be handed over to the person concerned immediately after
the evil stands remedied. Continuation thereafter would tantamount to
usurpation of their proprietary rights or violation of the fundamental
rights guaranteed by the Constitution in favour of the persons
deprived.”
This process of governmental takeover
of Hindu temples is seen by some as a product of a power of supposedly
secular management that has been arrogated by the Indian state.
Senior
advocates Fali S. Nariman and Rajeev Dhavan once wrote that, through an
exercise of this appropriated power, the government has overseen a
practical nationalization of religious endowments and temples. This
process, in their words, “sits uneasily with both the guarantee of
religious freedom and secularism”.
Although, in
many ways, the present-day intervention in matters of religious
administration has its roots in the British rule, the more general
practice predates even the colonial regime.
Numerous
historical records attest to the fact that Hindu kings exercised a very
particular supervision of Hindu temples. As the P.R. Ganapathi Iyer
wrote in his 1918 treatise The Law Relating to Hindu and Mohammedan Endowments, there is little doubt that Hindu kings interfered when there were disputes pertaining to temple affairs.
In
fact, in 1887, justice Raymond West of the Bombay high court
specifically pointed to such interventions as being a part of the
prevailing norm. “Under the native system of Government, though it was
looked on as a heinous offence to appropriate to secular purpose the
estate that had once been dedicated to pious uses,” the judge wrote, in a
case titled Manohar Ganesh Tambekar vs Lakhmiram Govindaram. “The State
in its secular executive and judicial capacity habitually intervened to
prevent fraud and waste in dealing with religious endowments.” This
power of superintendence was, therefore, really seen as being an
incident of sovereignty.
Under Muslim
administration, too, Ganapathi Iyer points out, the governments of the
time saw it as the state’s duty to ensure that all endowments for the
support of mosques, Hindu temples, and so forth were “applied according
to the real intent and will of the grantor”.
The
Mughal rulers, for example, appointed Qadis (Islamic judges) and
nominated Mutawallis (trustees) for Wakfs. These Mutawallis were
accountable to the Qadis, to ensure the proper management of Wakf
property, which were endowments made by Muslims for religious, pious or
charitable purposes.
Thus, a general, if not an
overarching, power to administer and manage religious and charitable
endowments was seen by both Hindu and Muslim rulers as an integral
function of the sovereign. Long before 1810, when the British colonial
government passed its first official notification assuming this supposed
governmental role, the regime undeniably exercised supervisory
functions over pious endowments.
Consider this
observation by the Madras high court in an 1867 judgement: “The duties
of superintendence and the proper appropriation of the endowments of
Hindu and Muhammadan temples and religious establishments, of the
preservation of the structures of such temples and establishments, and
of the management of their affairs, through trustees or managers, were
without doubt, we believe,” wrote chief justice Colley Harmon Scotland
and justice L.C. Innes, “exercised by the officers of the Local
Government indiscriminately long before the Tanjore territory and
temples were assumed by the Government.”
This
supposedly intrinsic power had further crystallized with the passing of
the Bengal Regulation XIX [19] in 1810 and the Madras Regulation VII [7]
in 1817. Through these laws, the general management of all endowments
of religious establishments in these presidencies—apart from the duty to
appoint properly qualified trustees and managers to these
foundations—were made binding on the Board of Revenue. The Board, a 1781
creation of the East India Company, had been established to oversee the
revenue and business of the institution.
Surprisingly,
governmental interventions, at the time, in matters of religious
administration were largely welcomed. These regulations were, according
to Pran Nath Saraswati, the first Indian judge of the Calcutta high
court, “instrumental in saving many of the native endowments from ruin
and misappropriation”.
But around the middle of
the century, the application of these regulations was withdrawn amid
what Saraswati described as “religious scruples”. There were pressures,
as it happened, from Christian missionary circles, both in India and in
England, against what were perceived as express governmental support for
idolatry.
Ultimately, in 1863, the Imperial
Legislature enacted a comprehensive law with a view to continuing the
fine work that the Board of Revenue had performed under earlier
regulations.
But the new legislation proved
highly ineffective. Its scope was rather more limited, and it relied not
on executive powers over religious administration, but on the
intervention by courts to set right any maladministration that had been
brought to its attention. The result of this law was so disastrous,
wrote Saraswati, that it became “practically impossible to compel the
managers of endowments to perform their allotted duties with honesty and
faithfulness”.
Over the course of the next few
decades, several attempts were made by the colonial government to
provide for itself a more far-reaching role in the administration of
religious endowments. However, the British were deeply conscious of
their limits. They didn’t want to be seen as religious reformers, and,
with Christian missionaries constantly on their heels, the government
also didn’t want to be seen as favouring the Hindus.
But,
after the enactment of the Government of India Act, 1919, with
purported constitutional changes bringing forth a stricter demarcation
between central and provincial legislatures, there was a belief that
reforms could flow from the acts of Indian representatives rather than
through the British colonial government.
In
1927, as a product of this division, the Madras legislature enacted a
religious endowments Act. Unlike earlier regulations that applied to
both Hindu and Muslim institutions, the 1927 law was sanctioned with the
sole view of overseeing, through a board of commissioners, the
management of Hindu institutions. This board was vested with enormous
powers; not only could it frame schemes for better administration of
temples, it could also, in cases of mismanagement by existing trustees,
take over altogether the management of a temple.
The
upshot of the law was the commencement of what Nariman and Dhavan now
describe as the nationalization of the Hindu religion. Once the state
assumed control over the management of a temple, it was simply loath to
privatizing this power.
Just over two decades
later, when the Indian Constitution was adopted, the ability of the
state to intervene in any purportedly secular affair of a religion, as
had been the norm for several centuries, was seen not as antithetical to
secularism, but as necessary for guaranteeing a more egalitarian
society.
Unlike the American constitution, which
prescribes a strict wall of separation, what India’s Constitution
demands is, in political theorist Rajeev Bhargava’s telling description,
the maintenance of a “principled distance” between the state and
religion.
Therefore, when, in 1951, the Madras
government introduced a new Hindu Religious and Charitable Endowments
Act, the law was predominantly viewed by the Supreme Court as being in
consonance with both the Constitution’s bare text and its secular
ideals.
This law, however, had accorded the
state government exceedingly wide powers of interference. Unlike the
earlier British-era enactments, which provided for a general supervision
of Hindu endowments through a statutory board of commissioners, the new
legislation virtually vested the administration of Hindu religious and
charitable institutions in a governmental department.
The
commissioner appointed by the government could, under the 1951 law,
frame and settle a “scheme”, if he or she had reason to believe that a
religious institution was mismanaging the resources placed under its
care, or was being run contrary to the purposes for which it was
founded.
“It is no exaggeration,” wrote
Professor Donald E. Smith, an early chronicler of Indian secularism, “to
assert that the commissioner for Hindu religious endowments, a public
servant of the secular state, today exercises far greater authority over
the Hindu religion in Madras state than the archbishop of Canterbury
does over the Church of England.”
Smith also
sought to brush aside the argument that the commissioner and his
appointees merely exercised control over secular functions as being
“simply untenable”. “When a deputy commissioner sanctions the
expenditure of surplus temple funds for the establishment of orphanages
rather than for the propagation of the religious tenets of the
institution, he is dealing as much religion as he is with finances,” he
wrote. “Behind this preference lies a whole set of religious assumptions
which are in effect being imposed on the temple trustees.”
The
imprimatur given to the Madras law by the Supreme Court saw the
heralding of several new laws across India. In 1959, after the
reorganization of the southern states, the Tamil Nadu government
repealed the Madras law of 1951 and enacted a new law that today
virtually serves as a model for the country.
At the time when the 1959 law was being debated, The Hindu
newspaper claimed in an editorial that the proposed enactment “sought
to tighten further the hold of government over the temples and other
religious institutions in the state, under the guise of better
management and regulation, so that these stood virtually nationalised,
functioning as a department of government and subject to all the
vicissitudes of party politics in a secular parliamentary democracy”.
The
newspaper’s claims, some would argue, have since proved prescient. The
collective result of the various laws establishing an overarching power
to manage Hindu institutions has seen a staggering takeover by the
government of virtually every Hindu temple of any reasonable note.
For
example, as scholar Pratap Bhanu Mehta has previously noted, the Andhra
Pradesh government alone administers more than 30,000 temples, in 2003,
with the scope of its endowments body extending beyond the simple
governance of property rights to include the selection and appointment
of priests and the proper administration of rituals.
Many
see this intervention as a usurpation of Hindu endowments for the
benefit of the government, and as being opposed to all tenets of what
constitute a “principled separation” between the state and the Hindu
religion. At the same time, others argue that the singling out of Hindu
endowments neither violates the Constitution’s text nor the larger
guarantee of a neutral form of secularism.
Bhargava,
for example, maintains that “principled distance allows for
differential treatment”, so long as state intervention can be justified
on the grounds that it “promotes freedom, equality, or any other value
integral to secularism”.
Most governments argue
that, in taking over the management of a Hindu temple, their intentions
are embedded precisely in these constitutional values; that their
intervention is necessary to bring about social welfare and reform, to
correct a history of social inequities.
Would
the privatization, so to speak, of Hindu temples necessarily lead to
better management? Would it ensure that these endowments are
administered in a manner that conforms to the guarantee of basic civil
rights of the various different followers of the Hindu religion?
The
state would argue that its intervention in Hindu endowments and trusts
is not aimed at reforming the religion out of existence, but rather at
ensuring that the administration of the endowment stays true to both the
will and the intent of the grantor and the country’s secular ideals.
Should the state now leave religion alone? Has it ever?
Suhrith Parthasarathy is a lawyer and writer based in Chennai. His writings are collated at suhrith.net.
