2006 Supreme(Kar) 683

Karnataka High Court
Judges : R.Gururajan,C.R.Kumaraswamy
SRI SAHASRA LINGESHWARA TEMPLE, REP.BY ITS MANAGING TRUSTEE SUNDARESH ATHAJE - Appellant
Versus
STATE OF KARNATAKA, REP.BY ITS SECY., DEPARTMENT OF RELIGIOUS AND CHARITABLE - Respondent
Writ Appeal 3905 Of 2005
Decided On : 09/08/2006
Advocates Appeared :
A.Ananda Shetty, A.KESHAVA BHAT, A.N.Hegde, Amaresh A.Angadi, B.M.KRISHNA BHAT, C.H.JADHAV, D.S.Shivananda, G.S.BHATT, G.S.Kannur, H.N.Shashidhar, K.CHANDRANATH ARIGA, K.M.NATARAJ, K.N.PHANINDER, K.R.SREENIVAS PATAVARDHAN, K.S.ARUN, K.SHASHI KIRAN SHETTY, K.SUMAN, KISHORE SHETTY, Krishna Dixit, KRISHNAMURTHY HASYAGAR, Kumar, LEX NEXUS, M.N.SHESHADRI, M.V.HIREMATH, M.V.VEDACHALA, MANJUNATH MELED, Nalini Venkatesh, O.SHIVARAMA BHAT, P.D.VISHWANATH, P.M.JALISATGI, PADUBIDRI RAGHAVENDRA RAO, PUNDIKAI ISHWARA BHAT, PUTTIGE R.RAMESH, R.M.KULKARNI, RAJASEKARAN, RAMESH P.KULKARNI, RAVI G.SABHAHIT, Ravi Malimath, S.N.KRISHNA BHATT, S.S.ODAMANI, S.Z.A.KURESHI, Subhash Mallapur, SURESH BHATT, V.R.Prasanna, VAISHALI HEGDE, VIGNESHWAR S.SHASTRY, Y.RAJENDRAPRASAD SHETTY

Headnote:Words and Phrases - Hindu, Hindutva and Hinduism. No precise meaning can be ascribed to the terms Hindu, Hindutva and Hindusim; and no meaning in the abstract can confined it to the narrow limits of religion alone, excluding the content of Indian culture and heritage. The term Hindutva is related more to the way of life of the people in the sub-continent. It is difficult to say that the term Hindutva or Hinduism per se, in the abstract, can be assumed to mean and be equated with narrow fundamentalist Hindu religious bigotry, or be construed to fall within the prohibition in sub-secs (3) and/or (3A) of Sec.124 of the R.P.Act. Ordinarily, Hindutva is understood as a way of life or a state of mind and it is not to be equated with, or understood as religious Hindu fundamentalism. The word Hindutva is used and understood as a synonym of Indianisation, i.e., development of uniform culture by obliterating the differences between all the cultures co-existing in the country. Considering the terms Hinduism or Hindutva per se as depicting hostility, enmity or intolerance towards other religious faiths or professing communalism, proceeds from an improper appreciation and perception of the true meaning of these expressions. Misuse of these expressions to promote communalism cannot alter the true meaning of these terms. The mischiefs resulting from the misuse of the terms by anyone in his speech has to be checked and not its permissible use (AIR 1996 SC 1113).

       Cases Referred: AIR 1996 SC and 78 Kerala(Sic); AIR 1980 SC 1; AIR 1958 SC 538;AIR 1995 SC 605; AIR 1996 SC 1113; AIR 1996 SC 1023;AIR 2005 SC 3172;AIR 2005 SC 3053;1959 Mys.LJ. 709; AIR 1963 SC 1638;AIR 1978 Ker. 68;1976 Supp. SCR 478;AIR 1954 SC 282; AIR 1954 SC 388;AIR 1958 SC 255;AIR 1997 SC 124;AIR 2002 SC 3538;(2004) 4 SCC 661;(2005) 6 SCC 690;

       Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 - Preamble- Object of Act and history of subject matter -Stated. [R. Gururajan and C.R. Kumaraswamy, JJ.]: Indian Democracy is governed by a written Constitution. The majority population of this sub continent are Hindus. The Hindu religion is considered to be one of the oldest religions in the world. Hindu religion encompasses itself several castes/sub-castes of different shape and different colour. The caste and sub caste also vary from State to State or from region to region. The practice also varies to a large extent. The Hindu religion at best can be considered to be a case of Unity in diversity. The Hindu religion is based on scriptures such as Upanishads, Vedas, Geetha etc. Hindu religion is considered to be a way of life. Hindu religion permits worship of even inanimate objects-Ashwatha Vriksha is worshipped/ Nagadevatas are worshipped/soil is worshipped/ sea is worshipped to give few examples. The State of Karnataka was a unification of several parts which otherwise formed part of other States. The old Mysore area consisted of several districts which were under the control of the then Maharaja of Mysore and later under the control of the then Mysore State. Several Kannada speaking districts which were part of Bombay State got merged with the new State of Karnataka so also the Districts from the then Madras State and districts from Hyderabad State got merged to the State of Karnataka. Earlier the Karnataka Religious and Charitable Institution Act, 1927 was applicable to what is known as the old Mysore area. The Madras Hindu Religious and Charitable Endowment Act, 1951 despite South Canara and Coorg becoming part of the Karnataka State was still governed by the Madras Act. The Bombay Public Trust Act, 1950 was applicable to the Bombay Karnataka namely Bijapur, Dharwar, Belgaum and North Canara. Hyderabad Endowment Regulations Act was applicable to some Districts such as Raichur, Gulbarga etc., The Coorg Temple Funds Management Act, 1956 is applicable to the Coorg area. Though all these districts formed part of the new State of Mysore known as Karnataka still for the purpose of religious administration, these old laws were made applicable. There were several litigations that arose with regard to temple/mutt administration and were regulated by the above referred Acts to those disputes despite the areas falling in the State of Karnataka. From the Judgment of the Supreme Court, what is clear to us is that a comprehensive legislation which will apply to all Maths and temples in the State of Karnataka may afford a satisfactory solution to the problem. Though this Judgment was rendered in 1980, the Government has chosen to frame the present uniform Act of 1997 for management and administration of Hindu Religious and Charitable Endowment in the State of Karnataka after 17 long years. The object of the Act is to make better provision for management of Hindu Religious institutions. The further object is to have a uniform law in the light of a longstanding public demand to provide for regulation of all Charitable endowment and Hindu Religious institutions in this State. It was with these two laudable objects, the State Government enacted 1997 Act and repealed all the earlier five Acts namely, (1) The Karnataka Religious and Charitable Institution Act, 1927 (2) The Madras Hindu Religious and Charitable Endowment Act, 1951 (3) The Bombay Public Trust Act, 1950 (4) Hyderabad Endowment Regulations Act (5) The Coorg Temple Funds Management Act, 1956. The history therefore reveals that the present Act is a uniform law in terms of the statement of objects providing for better Regulation of all Charitable Endowment and Hindu Religious institutions in the State. The Supreme Court wayback in 1980 has expressed the view that a uniform religious law is necessary for the unified Karnataka State. The statement of objects and reasons would also show that there has been a longstanding public demand to bring about a uniform law to provide for the regulation of all Charitable Endowments and Hindu Religious Institutions in the State.

       Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 - Preamble- Scheme of Act -Stated. [R. Gururajan and C.R. Kumaraswamy, JJ.]: The Scheme of the Act, if read as a whole, would show that it does not apply to all Hindu religious institutions. The Government has chosen to enact a law for limited religious institutions. The main other features of the Act is creating a Common Pool Fund/facilities to the temple staff of the Act and it also makes provision for notified institutions.

       Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 - Preamble- Validity of Act -Act is violative of Articles 14 and 26. [R. Gururajan and C.R. Kumaraswamy, JJ.]: Act is hit by Articles 14 and 26 of the Constitution of India. Court has further ruled that it is not possible to severe them. Hence, Court deemed it proper to strike down the entire Act and consequently strike down the notification as un constitutional. However, if any action is taken in terms of the Act prior to the date of the order, the same are protected and this Judgment would operate prospectively from the date of the order.

       Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 - Section 23 -Taking over all temples without any adverse report, is bad and hit by Article 26(b). [R. Gururajan and C.R. Kumaraswamy, JJ.]:The State Government would be well advised to take over such temple only in the event of an adverse report after an opportunity against that temple. Taking all temples and administering them without any adverse order, as rightly argued would be hit by Article 26 of the Constitution of India. But however, the power to take over the administration in the event of mal administration financial/mis-management certainly cannot be termed as violation of Article 26(b) of the Constitution of India. Therefore, the Government cannot in the guise of better administration takeover even the best administered temple for the purpose of managing the temple without justification. That would be certainly, as rightly argued, in violation of Article 26(b) of the Constitution. Therefore, application of Sec.23 in all temples without adverse report would be in violation of Article 26(b) of the Constitution of India.

       Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 - Section 25 -Committee of management -Exclusion of SCs and STs from -Is hit by Article 14. [R. Gururajan and C.R. Kumaraswamy, JJ.]: The constitution of the Committee of management is provided u/s.25 of the Act. The Committee consists of pradana archak or archak. Atleast one member among Scheduled Caste and Scheduled Tribe. Of the other, atleast five of whom, two are women from among the persons in the vicinity of the temple. The 2nd proviso to Sec.25(3) would show that it would not apply to Hindu religious denomination. In the earlier part of Judgment is shown that the Court has made no distinction between Hindu denomination and Hindus and hence exclusion of Scheduled Caste and Scheduled Tribe from the Committee of management in so far as Hindu religious denomination is concerned would be again hit by Article 14 of the Constitution of India. Moreover, the Scheduled Caste and Scheduled Tribe are to be a part of the Committee in the larger interest of Hindu Community. Their exclusion in the case of Hindu religious denomination temples would be an arbitrary, unjustifiable treatment thereby violating Article 14 of the Constitution of India.

       Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 - Section 25(4) -Qualification of member prescribed under -Is arbitrary. [R. Gururajan and C.R. Kumaraswamy, JJ.]: Section 25(4) provides for qualification to be a member of the Committee. Sec.25(4)(a) would say that a member should have faith in God. It cannot forgotten that he has to manage temples and that therefore he should have faith in Hindu religion as well. Similarly Sec.25(4)(d) provides for membership only to those who have donated or contributed for temple development. Why should a poor devotee be excluded is un-understandable. Similarly if a lawyer appears for or against an institution, he is disqualified. Therefore, from a reading of this Section, what is clear is that atleast some of the classes would appear to be arbitrary.

       Judicial Review - Invocation of power of -Judicial review always would include consideration of exclusion by way of discriminatory matter in violation of Article 14 of the Constitution of India.

       Cases Referred:AIR 1996 SC and 78 Kerala(Sic); AIR 1980 SC 1; AIR 1958 SC 538;AIR 1995 SC 605; AIR 1996 SC 1113; AIR 1996 SC 1023;AIR 2005 SC 3172;AIR 2005 SC 3053;1959 Mys.LJ. 709; AIR 1963 SC 1638;AIR 1978 Ker. 68;1976 Supp. SCR 478;AIR 1954 SC 282; AIR 1954 SC 388;AIR 1958 SC 255;AIR 1997 SC 124;AIR 2002 SC 3538;(2004) 4 SCC 661;(2005) 6 SCC 690;