Thottathil B. Radhakrishnan, J.

1. Section 14 of the Madras Hindu Religious and Charitable Endowments Act, 1951 as substituted by Amending Act 31/2008; Madras Hindu Religious and Charitable Endowments (Amendment) Rules, 2009 inserting 'Rules under Section 14(3)'; and, Circular No.HRJ 1 - 5144/2009 dated 3.8.2009 issued by Commissioner of the Malabar Devaswom Board, for short, “Board”, are under challenge.

2. Heard learned senior advocate and other learned advocates for the petitioners, the learned Government Pleader and the learned standing counsel for the Board.

3. Different temples fall within 'Malabar area' as defined in Section 9(a) of the Madras Hindu Religious and Charitable Endowments Act, 1951, for short, “Madras Act”. Petitioners are either hereditary trustees or trustees of some of those temples.

4. Section 14 is inserted in the Madras Act to provide for Temple Advisory Committees, for short, “TACs”. Sub-section 2 of that Section provides that TACs formed under sub-section 1 of that Section shall be approved by the Board. Subsection 1 provides that for the purpose of ensuring the adequate participation of Hindu devotees, a committee may be constituted for each temple in the name “(name of the temple) Temple Advisory Committee”, not inconsistent with the existing custom and practices. Sub-section 3 of Section 14 provides that the composition of a TAC under sub-section (1) shall be in such manner, as may be prescribed. The impugned amendment to the Madras Hindu Religious and Charitable Endowments Rules, for short, the “Rules”, contains eight rules inserted under the heading “Rules under section 14(3)”. Rules 1 and 2 provide that every TAC shall consist of one member from among the trustees of the temple; the chief priest of the temple; one member from Scheduled Caste/Scheduled Tribes Community; one woman member; four other members; and Executive Officer of the temple. Of them, six members, i.e., other than the chief priest, member from among the trustees and the Executive Officer, shall be nominated by the Board from among the locally residing Hindu persons having interest in the affairs of the temple. Rules 3 to 7 provide for the meetings, quorum, frequency of meetings and other related aspects. Rule 8 provides that the TAC shall take special care in maintaining the existing custom and practices of each temple. The impugned circular dated 3.8.2009 issued by the Commissioner enumerates the purpose for the constitution of the TACs and describes the duties and responsibilities of office bearers. Those provisions are spread out in Clauses 1 to 4. Clause 5 deals with the authority of the TACs and also provides the mode of their dissolution and the requirement that the TACs should act in conformity with the directions of the Board. The term of a committee is prescribed as two years.

5. The impugned amendments to the Madras Act and Rules, as well as the impugned circular, are challenged as violative of Article 26, apart from Article 14 of the Constitution. The amendment, incorporating Section 14, is impeached as an unauthorised invasion to the insulation available to the trustees to manage the affairs of a religious institution, as secured by Section 8B of the Madras Act which provides for assumption of direct administration only on request and to that extent, infractive of the constitutionally guaranteed fundamental rights in that regard. The power of the Deputy Commissioner under Section 58 of the Madras Act to frame Scheme is pointed out as sufficient authority to ensure that there is no mismanagement of any religious institution, including of a temple, and the provision in the nature of Section 14 that is now brought in is criticised as contrary to the provisions of Section 8B of the Madras Act. The impugned rules are criticised as having been made without authority under the Madras Act and made only to erode the administration of the religious institutions, including temples by those who are enjoined to carry