The Supreme Court yesterday issued notice in the Petition filed by BJP MP Subramanian Swamy seeking to declare the Hindu Religious and Charitable Endowments Act 1959 as unconstitutional.

In his Petition, he has claimed that the Tamil Nadu Government has arbitrarily taken over the administration and control of nearly 40000 Hindu temples and Hindu religious institutions in Tamil Nadu.

"Through the HRCE Act, the respondent-government has arbitrarily and unconstitutionally taken over the administration, management and control of nearly 40000 Hindu Temples and Hindu religious institutions in Tamil Nadu. The respondent-government has also been arbitrarily interfering in the appointment of Archakas and in the discharge of other religious and administrative functions, which acts of the respondent are in derogation of the right to freedom of religion enshrined in Article 25 and 26 of the Constitution.", the petition states.

The Petition challenges the constitutional validity of various Sections of the Hindu Religious and Charitable Endowments Act 1959 on the ground that it grants the Tamil Nadu Government absolute control over the appointment and dismissal of Archakas in Hindu temples in the State.

The Petition urges the Court to strike down several provisions of the HRCE Act such as the appointment of Archakas, appointment of trustees, administration of the trust properties etc.

The Petition states that the Tamil Nadu government has issued several notices and orders under the said Act taking full control of the management of Hindu temples in the state.

It has been argued that the State Government has used its legislative power to take over all Hindu religious institutions.

"The respondent-government has used its legislative power which is confined only to regulate secular aspects of religious institutions, to what amounts to take over/nationalization all Hindu religious institutions which is not permissible under law...", the petition stated.

The petition further stated that "The Respondent-Government has taken over 40000 hindu temples, without just cause, it is submitted that this is nothing but an act which may be termed as "Nationalization of Temples", and it has been done without jurisdiction and in violation of fundamental rights."

It has been submitted that the State Government has created an extensive bureaucratic mechanism to maintain control over affairs and wealth of the temple.

The Petition contends that the trustees of the religious institutions in the state are completely at the mercy of State Government. It has been further submitted that the state government exercises pervasive control of the activities of the trustees of all Hindu religious institutions in the State.

It has been submitted that the State Government and the commissioner have the power to micromanage all trustees and that every decision of the trustees of religious institutions is subject to approval from the State government.

The Petition states that the power to dismiss or suspend trustees is another weapon that the state government has which ensures no independence for trustees. It has been submitted that all functions of the trustees are under the control of the state and are subject to constant review of the state.

The Petitioner further submitted that "...from the above description of the provisions of the HRCE Act it is ex-facie clear that trustees are mere figurehead appointments by the respondent-government with the respondent-government and its officers retaining and exercising complete control over their activities and affairs. It is submitted that all these appointments are made by ignoring the initial trust deed or custom which had led to the formation of the trust, endowment or temple in the first place; and they are completely overridden and controlled by the state government as if it were the property of the state government."

The Petition has accused the state government of empowering itself under the guise of regulations to such an extent that the government was giving away lands of Hindu religious institutions to illegal encroachers.

"In the policy note 2018-19 issued by the HRCE department, the respondent-government claims to have regularized encroachments on 300 acres of lands belonging to religious institutions. It fails to mention where it derives the power to regularize encroachments on private/trust property. It is such vast and drastic powers that the respondent-government has given to itself, that have completely ousted the role of private trustees and devotees in the process of decision making for temples. It may be argued that these functions are secular in nature and therefore amenable to regulation; however, as various judgments of this court have already held, such secular functions are to be performed by the trustees of the religious institutions and not by a government exercising control in the guise of regulation.", the petition claimed.

It has been submitted that rights of practice, propagation of religion guaranteed to every Hindu have been taken away and it was reduced to cursory or nominal right.

The petitioner has averred that the state doesn't have any right or constitutional mandate to interfere in the management and administration of the temple funds. The Petition states that the funds of the religious institutions cannot be controlled in a manner as purported to be controlled by the government under the Act.

"...funds of the state may only be regulated by the State to a very limited extent which is to say only to regulate financial management. The funds are donated by devotees in the exercise of their right to profess and propagate religion and these funds are to be used by religious institution for that purpose only.", the petitioner submitted.

It has been further stated that appointment of Archakas is an integral part of Hindu religion and that the appointment of Archaka is the sole right of the independent trustees of the religious institutions or the Mahant, without warranting any interference from the state government.

The Petition states that the government has prescribed arbitrary eligibility and retirement ages for Archakas under the Tamil Nadu Hindu Religious Institutions Employees (Conditions of Service) Rules, 2020 as if it was an appointment to government office.

While referring to the case- Seshammal v. State of Tamil Nadu, the petition states that the trustees are empowered to appoint Archakas, therefore the power of state government authorities to supersede the decision of trustees in regard to appointment, dismissal etc. of Archakas under the Act are unconstitutional.

The Petition argues that if Archakas are appointed at the behest of the government then it would lead to grave and irretrievable injury to the temples and Hindu religious institutions in Tamil Nadu.

The plea has sought a temporary injunction against Tamil Nadu Government restraining them from appointing or dismissing Archakas for temples in Tamil Nadu till the disposal of this Petition.

"It is submitted that the balance of convenience is in favor of the petitioner, as an injunction on the appointment and dismissals of Archakas by the Respondent would not cause any prejudice to the respondent. If such an injunction is not granted, it would seriously curtail the fundamental rights of the Hindus. It is respectfully submitted that for the foregoing reasons, the unconstitutional actions and practices of the respondent-government are liable to be stayed for the pendency of this petition.", the petition stated.

Cause Title- Dr Subramanian Swamy v. State of Tamil Nadu & Anr.

Click here to read/download Petition



Subramanian SwamyPILGovernment Control of Hindu Temples

Ashish Shaji