Author: Chandana M from St. Joseph’s College of Law
ABSTRACT
The Religious Properties such as temples, mosques, shrines, endowments and waqfs dates back to many years ago in India. Since the time of the Mauryans, kings and various societies have been donating land and money in order to provide for religious bodies and clergies. There were ancient provisions regarding these endowments that they were to be considered sacrosanct; all human actions, according to the Brahmanical texts were of a religious nature and early endowments involved tax immunity and rights over temple lands. Over time many different groups such as the Hindus, Muslims, Christians, Jains and others constructed large charitable institutions using their donated properties. These properties have continued to play an important role in communal worship and community services. The management and protection of these properties has always been a contentious issue over the years; therefore, there is need for some form of protection through legislation. This research focuses on the development of laws governing religious properties in India, constitutional provisions (Art.
25–28, 29, 300A) legislations and relevant cases before the Supreme Court of India.
Keywords:- Religious Property, Constitutional Safeguards, Judicial Protection,Freedom of Religion, Religious Endowments, Waqf Property, Hindu Religious Institutions,Article 25, Article 26, Article 300A, Religious Trusts, Religious Freedom, Cultural Heritage, State Regulation,Religious Institutions.
- INTRODUCTION :-
The analysis of Religious Endowment and Donation Trusts that is prevalent in India since ancient days when civilization began and where the rulers, rich men, and common people used to give away their movable and immovable properties for religious and charitable purposes. This religious endowment was made in respect of donation of their property for places of worship, schools and colleges, hospitals, restaurants, and other philanthropic institutions. It was considered a religious duty on the part of such donors for donating their properties because they were vested permanently for fulfillment of the religious and charitable purposes of the donors. Since ancient days, the Indian system of jurisprudence recognized the dedication of properties for religious and charitable purposes. The Hindu religious laws and literature like Manusmriti, Yajnavalkya Smriti and others provided guidelines for dedication of religious endowments, appointment of shebaits,and management of temple property. Islamic laws also recognize the concept of waqf, in which properties were permanently dedicated for religious or charitable purposes under the management and control of a person called mutawalli. Similarly, the Christian churches, Sikh Gurdwaras, Jain temples, and Buddhist monasteries have evolved a system of management of the properties which have been dedicated for religious.
The British colonial era of administration introduced Statutory regulation of religious institutions accompanied with the withdrawal of the colonial administration from direct management of religious matters was adopted in the process. At first, the administration controlled the management of certain temples and religious endowments but the concern about state involvement prompted legislative changes. The passage of the Religious Endowments Act 1863 gave over the management of many religious institutions to local committees and trustees. The Act thus acknowledged the independence of the institution. Then came the Charitable and Religious Trusts Act 1920 that made it possible to have access to information on the management of religious and charitable trusts through judicial means . The Constitution of India has created a complete constitutional scheme for the protection of religious institutions and their properties. Article 25 and 26 ensure the freedom of religion and the right of religious denominations for establishing and administering institutions for religious and charitable purposes. At the same time, the Constitution has conferred upon the State the power to make regulations for the secular administration of religious institutions for the sake of public order, morality, health, efficiency, and accountability. Constitutional jurisprudence in India has grown through a number of judicial precedents in order to protect religious institutions and their properties from unnecessary interference by the State.
II. Constitutional and Legal Framework
II.1. Constitutional PROVISION
II.1.i. Article 25: Provides for the freedom of religion to all persons. In other words, the freedom to follow one’s religion and its institutions. However, Section 25(2) allows the State to regulate secular or social aspects of religion (such as, succession to the office of a temple priest) and gives access to all Hindus to the institutions of Hindu religion. It has been held by courts, for example, that priestly functions are secular acts that can be regulated by the State under Section 25(2)(b).
III.1.ii.Article 26: Provides rights to the members of religious denominations collectively to establish institutions and manage them and their properties. Sections 26(c) and (d) allow a religious denomination to hold and manage its property for religious or charitable purposes. This is the main constitutional provision providing for property of religious character. The Supreme Court has held time and again that the right of an institution to determine the practices of religious character is part of its autonomy.
III.1.iii.Article 27: Provides that state shall not tax compulsorily for the purpose of religion or religious institutions. This ensures secularism and non-partisanship, for example, no state financing for maintenance of a particular place of worship. The interpretation of administration charges.
III.1.iv.Article 28: Maintains the separation of religion from state-sponsored education. States that there shall be no religious instruction in any institution which is “wholly maintained out of State funds.
III.1.v.Article 29: Though aimed at providing cultural or linguistic rights to minorities, it also provides implicit protection to the interests of the religious minority communities. The article 30 provides express protection to the religious minorities for establishing and managing educational institutions.
III.1.vi.Article300A: This provision is a constitutional guarantee that prevents deprivation of property in an arbitrary manner. This implies that any acquisition of religious properties by the State, say temples, has to be done through proper legislative procedures. As such, though the fundamental right to property ceased in 1978, 300A ensures due process.
II.2.LEGISLATIVE FRAMEWORK
II.2.i. (2)Waqf Act, 1995 (Act 43 of 1995) – provides laws regulating waqfs in Muslims. For example, this Act requires registration of waqf properties, constitution of State and Central Waqf Boards, and auditing of accounts. Specifically, this Act provides that State/Central Waqf Board may administer waqfs, the administration whereof has been neglected and regulate transfer of waqf properties for their dedication to the purposes.
II.2.ii. Indian Trusts Act, 1882 – provides the law regarding private trusts. Specifically, under Section 2(1)(b) of this Act, public religious or charitable trusts are exempted from the provisions of this Act. To put it another way, the temple trust or waqf trust is not subject to ordinary law of trusts.
II.2.iii.Charitable and Religious Trusts Act, 1920 – empowers the beneficiaries or any other authority to move the court for the management of charitable trusts. The preamble to this Act refers to the need for “more effective control” of the trust funds. Now, this Act is used for auditing of trustees and diverting of charitable-religious funds.Act relating to Religious Endowments, 1863 – vests the states with powers to rid themselves of the burden of management of temples. Certain provisions of this Act, like Clause 2, which empowers Act relating to Religious Endowments, 1863 – originally vested states with powers to relieve themselves from the burden of management of temples. Certain clauses of this Act, such as clause 2, which provides for transfer of management to committees, continue to apply to those states which have not enacted any subsequent acts.
II.2.iv.Acts relating to State Hindu Religious Endowments – for instance, the Tamil Nadu (1959), Kerala (1971), and Andhra Pradesh (1961) State Hindu Religious Endowments Acts – make temples answerable to the state.Religious Endowments Act, 1863 – authorized the states to alienate themselves from the management of temples. Some of the provisions of this Act (such as Section 2 transferring the management to the boards) still exist in those states which have not enacted subsequent Acts.
III. RELEVANT CASE LAW
III.1.Durgah Committee, Ajmer v. Syed Hussain Ali. (3)
This landmark case relates to the administration of the tomb of Sufi Saint Hazrat Khwaja Moin-ud-din Chishti of Ajmer. The respondents challenged the Dargah Khwaja Saheb Act, 1955 as ultra vires the constitution under Article 266. The argument of the respondents: “Khadims” have been the custodians of the tomb from time immemorial. Khadims do not belong to the Hanafi school of Islam. However they are the ‘Chisti Sufis’ belonging to the Chisti order of Sufis which is a sect within Islam. (Religious denomination-Article 26) Accordingly Khadims claimed that they alone have got the exclusive right to manage their own religious affairs. Under the impugned act, even a Muslim belonging to the Hanafi school of Islam could be appointed to the Durgah administration committee. The Supreme Court accepted that Chisti were religious denominations but also upheld the law laid down in Shirur matt’s case and Devaru case that essential religious practices are relevant to the matters of religion. The court concluded that the Act only deals with the secular aspects. As the committee merely administered the endowments of the durgah, the Act was held to be consistent with the rights of the sect.
III.2.Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt 1954 (4)
Religious and Charitable Endowments Act, 1951 was argued to be a violation of freedom of religion and right to property. The Supreme Court developed the ‘essentiality test
while defining religion. According to the court, only those rituals and practices which constitute an integral part of the religion need to be considered. Thus, in other words, after the decision in this case, all rituals and practices cannot be considered to be an essential part of the religion. Rather, only those rituals and practices that are essentially a part of the religion are protected. Namaz is an essential ritual of Islam but offering namaz in the mosque is not an essential ritual of Islam. The secular matters that are not connected with the religious faith do not constitute a part of religion. Managing the property of the temple is a secular activity. When determining the essentiality of the practice, the court has mainly relied upon scriptures and teachings of the saints.
III.3.M Ismail Faruqui v. Union of India 1994, (5)
In the Babri Masjid matter, the Ismail Faruqui case has become the centre of discussion. In this case, the issue before the court was whether the state could acquire religious property. According to the decision of the court, mosque, temple and churches are immovable properties under Article 26. However, the state can take over the immovable properties since they are not an integral part of the religion. What is important is the right to worship at any place and everywhere but not necessarily at a particular place unless that place holds some kind of importance. The court observed that the acquisition of any religious place is to be made only in unusual and extraordinary circumstances for a larger national purpose bearing in mind that such acquisition should not lead to the extinction of right to practise religion.
III.4.Indian Young Lawyers Association v. The State of Kerala on 28 September 2018(6)
This latest decision was with respect to the entry of women in the Sabarimala temple. The five-judge bench in its majority decision stated that the prohibition of entry of women into the sanctum sanctorum of the temple is unconstitutional. As per the Supreme Court, the Sabarimala temple is not an independent religious denomination since it does not meet the criterion of having a distinctive name. The temple comes under the jurisdiction of the States as per Article 290-A of the constitution.
III.5.Sri Venkataramana Devaru and Others v. The State of Mysore and Ors.1958,(7)
Here, the trustees of the temple of Shri Venkataramana of Moolky Petta argued that Madras Temple Entry Authorisation Act, which permits the entry of Harijans in the temple, infringes their right to manage its own affairs. Here, the trustees of the temple of Sri Venkataramana of Moolky Petta had filed an appeal against the judgement of the.High Court and asked that the ban on the entry of Harijans in the temple premises should be maintained. The temple argued that it was a religious denomination and hence, had the right to manage its own affairs regarding the religious practices independently of any government intervention. The High Court held that restriction will be applicable to some special ceremonies, but the right of the public to worship should be recognized. In rejecting the appeal, the Supreme Court said that Article 25(2)(b) had to be harmonized with Article 26, i.e. it has to be liberally interpreted for public benefit. Moreover, it also held that Article 26 is not an absolute right and yields to restrictions under Article 25.
IV. Critical Analysis of Constitutional and Judicial Safeguard
From a constitutional perspective Articles 25–26 do provide the right for religious denominations to own acquire and manage property. However, such rights are subject to limitations in terms of public order and social welfare. The courts have ruled in favor of regulating the activity if it concerned secular aspects of the situation. For instance in Adithayan the Court approved caste-based reservations (a social welfare program) for priests recruitment as it was not affecting the “matter of faith”. It is a very sensitive balance between the strict enforcement of religious freedom that can prevent any reforms and too much interference of the state which may affect religious freedom.The courts have interpreted judicially the protection of essential religious practices using criteria developed since Shirur Mutt. According to the Supreme Court, “the protection is given to the practice of religion and to the denomination’s right to manage its own affairs in matters of religion”. The practices considered to be “purely secular” cannot be protected. However, in practice, what is called “essential” can vary unpredictably. There were some cases when the orthodox practices have been called “essential”, although they excluded some communities.
In terms of legislation, there is a proliferation of laws which makes things complicated. There are different statutes for waqf properties, temples, mutts, and churches. For example, waqf properties are governed by the central Waqf law while trusts of temples are governed by state HR&CE acts or even general trust law if the temple is privately controlled. As per the Faith, funds, and foundations review, there is diversification of governance of public trusts in India in
terms of vehicles (trusts, societies, and companies) along with differing oversight. In the process, there are loopholes as some trusts are not registered and are governed by private people who are outside of legal jurisdiction. Charitable trusts act of 1920 does offer some clarity, but then enforcement is poor. Apart from this, many temple trusts have accumulated a lot of money over decades, but scandals still happen.
There are gaps in enforcement as well. For instance, the property rights guaranteed by Article 300A are not absolute as under land acquisition law, the State can acquire any land (including temple land) for public purpose with payment of compensation. Insensitive acquisitions have taken place (railway line construction across temple lands, etc.) at times resulting in litigation. Likewise, new pressures created by communal tensions (e.g. desecration of mosques/churches) challenge secularism provisions.
Moreover, there is conflict between Articles 25/26 and Article 14/15 (anti-discrimination). Adithayan is a pertinent example where certain customs practiced by traditional religion excluding certain castes were declared as discriminatory, thus unconstitutional, notwithstanding claims made under Article 25.
V.FINDINGS
V.1.i.Protection of Constitutional Values: Which focuses on the manner which the safeguards under the constitutional provisions protect religious property through the preservation of fundamental values of equality, justice and secularism. Under the Articles of 25 and 26 which gives every person right to practice religion, and manage institutions of religion, Articles 27 and 28 which ensures secular character of the state by not giving preference to any religion. Article 300A also ensures protection from the arbitrary deprivation of property including religious property. The constitutional provisions which guarantees the protection of temples, mosques, churches and other religious institutions. On the other hand, exercise of constitution al rights has to be done in with the principles of equality enshrined in Articles 14 and 15. It has been consistently held by the courts that practice of religion does not entitle anyone to engage in discriminatory practice which violating constitutional morality. Thus the constitution tries to strike a balance between the interests of religious communities on one side and wider social and democratic values on the other.
V.2.ii.Strengthening Accountability through Auditing and Reporting: The stronger accountability mechanisms in the administration of religious properties through regular auditing and reporting. Religious trusts and institutions manage significant assets including land, buildings, donations and charitable funds. In the absence of proper oversight these resources may be vulnerable to corruption, financial irregularities and misuse. The study recommends that all religious institutions maintain accurate financial records, property registers and annual reports that are subject to periodic review by independent auditing authorities. Transparent accounting practices which help to ensure that trust property is utilized solely for religious, educational and for charitable purposes. Public disclosure of financial information can further enhance confidence among devotees and beneficiaries. Adopting modern methods such as digital record-keeping and online databases to improve transparency and reduce opportunities for fraud. Regular audits would help detect irregularities at an early stage and promote responsible management of religious assets. By strengthening financial accountability and reporting standards, religious institutions can preserve public trust, prevent mismanagement, and which ensure that their resources continue to serve the welfare of the community in accordance with their intended objectives.
V.3.iii. Comparative Analysis of Constitutional and Judicial Safeguards: One of the major contributions made by this analysis is the comparison between constitutional provisions and judicial interpretations of the protection of religious property in India. The study considers the manner in which these constitutional protections, including Articles 25, 26, 27, 28, and 300A, have been considered and implemented by the judiciary for the purpose of providing protection to religious bodies. Based on an analysis of different landmark judgments, it provides insights into the changing approach taken by the judiciary towards balancing religion, property and government interference. It considers the similarities and differences that exist between the constitutional provisions and the way in which the judiciary resolves the disputes involving religious property. This study goes on to assess whether the judicial decisions have contributed to strengthening the protection of religious property and addressing contemporary issues like encroachments and mismanagement, and government interference with religious property. This will provide a better understanding of the strengths and weaknesses of the current legal framework through the comparison between constitutional provisions and judicial interpretation of these provisions.
VI. Ethical, Legal and Social Impact Analysis
Religious property disputes invariably have significant ethical and social implications. Disputes regarding religious structures like temples or shrines may often reflect social disputes. For example, the misuse and corruption of church or mosque trusts may lead to mistrust. The Ayodhya case made evident how law itself cannot address the emotional aspect of religion; the Supreme Court emphasized the need for social peace.In terms of ethics, the state needs to find a balance between considerations of faith and those of justice. Is it ethical for the state to appoint temple trustees or does it belong to the community to take care of itself? Legally speaking, it is an accepted principle that no faith is exempt from reform; unjust practices such as discrimination against poor castes (for instance, banning entry of disadvantaged caste groups) are usually set aside by the courts. But the criticism of the courts is that sometimes they make majority decision.
the case of Babri Masjid, granting the property to the Hindu God) in the name of pragmatism.Legal problematically is in ensuring fairness in enforcement of trust law. Trustees owe a fiduciary obligation to the general public, but there tends to be a disparity whereby religious institutions are regulated less harshly than corporations or the government.
This could facilitate exploitation by elites of money that should be spent on worshiping or charitable activities. Socially, the mismanagement of such wealth may damage public faith in the institutions, foster corruption and result in dilution of the cultural identity of the community as reflected in its religious monuments.Religious properties create human rights problems because of their administration. The practice of making certain reservations in temple management, for instance in the case of Kerala, has been introduced in the name of promoting social justice, but is controversial among the traditional members of the community. It has been the task of the court to balance these concerns. In Adithyan vs. N.G. Jayaraman has ruled in favor of making reservations in temple management under Articles 25 and 26.In terms of culture, religious property forms an important aspect of one’s identity. The damage done to such properties (either intentional or due to negligence) causes harm to the sentiments of the people. In such a case, protecting religious structures like temples, mosques, synagogues, or others is also an attempt at safeguarding the culture of a people. It can therefore be said that laws protecting religious property protect individual as well as communal rights.
VII. SUGGESTIONS
VII.1.i.Transparency and Accountability in the Management of Religious Property : There ought to be transparency and accountability in the management of religious property. There should be proper record keeping and auditing of incomes, expenses and properties. In addition, annual reports of religious property should be disclosed to the public to prevent corruption and mismanagement of religious properties.
VII.2.ii.Consistent Decisions by the Judiciary: The role of the judiciary in protecting religious property includes interpreting constitutional and legal provisions. The courts should make decisions that are consistent with the protection of religion, but also balance this with the values of equality, secularism and public order provided in the Constitution.
VII.3.iii.Establishment of Special Tribunals for Religious Property Disputes : In view of the complex nature of religious property disputes including issues related to ownership, administration and legal rights, there ought to be special tribunals or courts to handle such cases only. These courts should consist of judges who have knowledge about religious and property law.
VIII.CONCLUSION
Religious property is an essential part of India’s religious, cultural, and charitable heritage, requiring effective legal and constitutional protection. This analysis has examined the historical evolution of religious property laws and the constitutional safeguards under Articles 25, 26, 27, 28, and 300A and the role of the judiciary in protecting religious institutions and their assets. It has also analyzed challenges such as encroachment, mismanagement, corruption and disputes relating to ownership and administration. The analysis reveals that although the existing legal framework provides substantial protection effective implementation remains a challenge. Strengthening transparency, accountability, regular auditing and proper management of religious institutions is necessary to ensure the preservation of religious property. At the same time state intervention should be limited to secular and administrative matters to maintain the autonomy and religious freedom of institutions. A balanced approach combining constitutional safeguards judicial oversight and responsible governance is essential for protecting religious property and upholding the constitutional values of equality, justice, secularism and the rule of law in India.
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X.CITATIONS
1.Pleaders, Right of freedom of Religion
2.PRS India, “Waqf (amendment) Bill, 2024” https://prsindia.org/billtrack/prs-products/prs-legislative-brief-1743530721
3.https://indiankanoon.org/doc/1262157/
4.https://indiankanoon.org/doc/1430396/
5.https://indiankanoon.org/doc/37494799/
