Pannalal
Bansilal Pitti & Ors Vs. State of Andhra Pradesh & Anr [1996] INSC 82 (17 January 1996)
Ramaswamy,
K.Ramaswamy, K.Hansaria B.L. (J) K. Ramaswamy, J.
CITATION:
1996 AIR 1023 1996 SCC (2) 498 JT 1996 (1) 516 1996 SCALE (1)405
ACT:
HEAD NOTE:
AND WRIT
PETITION [C] NOS. 908, 1066, 1359 & 1375 OF 1987 AND TRANSFER CASES NOS.
169 OF 1988 & 60 OF 1989
This
bunch of writ petitions and transfer cases is at the behest of hereditary
trustees of Hindu Religious and Charitable Institutions and Endowments challenging
the constitutionality of Sections 15, 16, 17, 29 (5) and 144 of the Andhra
Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987
(Act 30 of 1987) (for short, "the Act").
The
facts in writ petitions No. 713/87 are sufficient for deciding the controversy.
The first petitioner is a founder of several charitable and religious
institutions in Hyderabad and Secunderabad of Andhra Pradesh.
He is a hereditary trustee of a premier institution known as Raja Bahadur Sir bansilal
Motilal Charitable Trust founded by his father donating Rs. 5,00,000/- in 1933.
It also established Sri Ranganath Mandir, Sri Jagannath Mandir, Sri Narsingh Mandir,
Sri Lakshman Maharaj, Raja Bahadur Sir Bansilal Hospital Trust and Sri Sanskrit
Sahitya Nidhi Trust in Hyderabad. Hari Prasad badruka, the 3rd
petitioner's family founded Shri Venkatesh Goraksha Trust with a sum of Rs.1,00,000/-
and donated 568 acres of land in Dabirpura and Konaipalle villages. They also
claimed to have purchased 58.35 acres in Hakimpet for grazing the cows. Raja of
Jataprolu in Mahaboobnagar District founded Madana Gopala Swamy and other
temples at Jataprolu village; Shri narsimha Swamy and Shri Ratna Lakshmi Devi
temples at Singapatnam; and Shri Amareshwara Swamy temple at Kollapuram. They
endowed 300 acres of seri lands for performance of Nitya Nivedhya Deeparadhana.
The first petitioner is a hereditary trustee and is entitled to nominate other
trustees for proper management. He is also a Mutawalli, who in terms of the
deed of trust, shall deduct 1/3 of the net income as his remuneration after
excluding the management and establishment expenses.
It is
the case of all the petitioners that they have been properly and efficiently
maintaining the aforestated trusts and charitable or religious institutions
without any complaint. The Andhra Pradesh Charitable and Hindu Religious
Institutions and Endowments, 1966 (17 of 1966) ) (for short, `the Predecessor
Act of 1966) recognised their hereditary right and made them Chairman of the
respective trusts, in the event of constituting a board of trustees with non-
hereditary trustees. The religious institutions and endowments or charitable
institutions were established on charity which every Hindu wishes to perform.
Establishment of charitable and religious institutions or endowments is a part
of freedom of conscience and right to maintain the institutions founded by
them. The Act, while purporting to regulate administration and governance of
Hindu charitable and religious institutions or endowment grossly violates the
constitutional rights under Articles 25 and 26 of the Constitution. Several learned
senior counsels S/Shri H.S.Gurujarao, A.K. Ganguli, R. Venugopala Reddy, M.N.Krishnamani
along with S/Shri A. Subba Rao and Sampath, argued in support of the
contentions of the petitioners.
They
also have filed written submissions. Shri P.P. Rao, the learned senior counsel,
resisted the contentions on behalf of the State and also submitted his written
arguments.
The
main thrust of the arguments of the learned counsel is that Articles 25 and 26
guarantee freedom to manage religious affairs and right to freely profess, practise
and propagate the religion to all citizens alike. Hindus constitute majority
population and Hindu religion is the major religion in the country. Equally
Muslim, Christian and Parsee citizens are entitled to the similar
constitutional rights under Articles 25 and 26. Without touching the
administration and governance of charitable or religious institutions or
endowments founded or maintained by Muslims, Christians or Parsees making law
regulating the administration of Hindu religious institutions and above
endowments offends Articles 14 and 15(1) of the Constitution. It is also
contended that when a denomination, which is a part of the major religion is
protected by Article 26, the major religions themselves as genus are entitled
to the protection of Article 26. Institutions belonging to them cannot,
therefore, be regulated under the law offending their right to religious
practice. By operation of clause (2) of Article 25, law of general application
in respect of religious institutions should be made and singling out the
religious institutions or endowments established and maintained by Hindus is an
invidious discrimination violating Article 14. The regulation of administration
and governance of the religious institutions or endowments would amount to
restriction on the religious practices or freedom of religion, since
establishment, maintenance and administration of the religious institutions and
endowments are intertwined with the very religious faith itself. It is
impermissible for an outside agency or the party like the State to determine as
to which activity is essential part of religion and which part is not. It would
not, therefore, be open to the State to restrict or prohibit, under the guise
of its secular power, the administration of the religious or charitable
institutions or endowments, country to what the followers of the religion
believe to be the religious duty. The administration of religious or charitable
institution and endowments as part of the religious practice, perceived and
rigorously followed by Hindus cannot, therefore, be divested by legislation.
The
further contention in this regard is that the State cannot directly undertake
to expend public money for patronizing any particular religion. Under the garb
of regulating administration and maintenance or religious or charitable
institutions and endowments, as a secular State, the legislature cannot make
law to appoint its officers or servants to manage the religious institutions or
endowments.
Abolition
of hereditary trusteeship totally deprives the right to practise charity or to
render charitable service or to establish religious institutions as a part of
religious charitable disposition or religious practice, which offends right to
religious practice guaranteed under Articles 25 and 26 of the Constitution. It
is further contended that without factual foundation of any mismanagement or misutilisation
of the funds of Hindu religious and charitable institutions or endowments,
abolition of the trusteeship is arbitrary, unjust and unfair violating Article
14 of the Constitution.
Shri Venugopala
Reddy contended that if any hereditary trustee has mismanaged or misutilised
the funds of the religious institutions or endowment, he could be removed by
following the procedure prescribed under the predecessor Act of 1966 and it
being successfully working, the hereditary right itself cannot be divested
under the Act on that premise. Abolition of hereditary trusteeship and
divesting him of the right to maintain and administer the religious institution
or endowment is not a remedy to cure the defect, if any, as pointed out by
Justice Challa Kondaiah Commission. In each case, the Endowments Department has
to conduct a survey, on its finding of any mismanagement or misutilisation and
appropriate, individual remedial action would be taken, but on that premise,
the right of hereditary trusteeship cannot be abolished by the by the Act. He
also contended that when Section 18 of the Act recognises and gives right to
representation to a member of the family in the board of trustees, abolition of
hereditary trusteeship under Section 16 is unconstitutional. He urged that when
right of a representation to a member from the family of the founder of the
trust of religious institution or endowment is recognised under Section 18, the
rule of primogeniture envisaged in the trust, its abolition is
unconstitutional.
Further,
the statutory abolition would dry up the zeal to establish a religious or
charitable institution or endowment. The pious wish or charitable disposition
to establish a religious institution or endowment is a desire to perpetuate the
memory of the founder, who was inspired with religious piety or charitable
disposition. The members of his family are entitled to be members of the trust,
and the right to chairmanship of the board ensures that the work would be
carried out as set out in the deed of endowment.
Shri Krishnamani
further contended that when the founder trustee or the hereditary trustee of
the religious or charitable institution or endowment renders free services in
an honorary capacity, the executive officer and the non- hereditary trustees,
receive salary or emoluments from the endowment depleting its source and
denuding its very source of income to do better or efficient service to the
followers or for the religious charitable purpose. The trustee appointed by the
donor's family would work with dedication which would be wanting in the
officers or non-hereditary trustees, since the latter do not have any personal
interest in the efficient or proper management of the institution or the
endowment. Denial of that right to do service to the religious institution or
endowment to the founder or the members of the family is, therefore, arbitrary,
unfair and unjust offending Article 14 of the Constitution.
Shri
P.P. Rao, the learned counsel for the State, resisted these contentions.
According to him, the Challa Kondaiah Commission after exhaustive survey had
pointed out diverse defects in the administration and management of Hindu
charitable and religious institutions or endowments or specific endowments and
made several recommendations, one of which relates to abolition of hereditary
trusteeship as part of the scheme. The report does indicate the mismanagement
and misutilisation of the funds of religious institutions or endowments or the
same used as a source to draw money for the family management of the founder.
The administration and maintenance of the religious or charitable institutions
or endowments are secular activities, though religious practices are not, and
the latter have not been interfered with by the Act. On the other hand, they
are specifically protected and the Act has directed the officers to follow the
established religious practices and sampradayams and to adhere to the same in
the management. Executive offices appointed under the Act are also Hindus
having faith and dedication to the proper and efficient management of the institutions
and endowments. Hereditary trustee, by its very nature, is not an insurance for
efficient and proper management. With a view to remedy the defects pointed in Challa
Kondaiah Commission, the legislature stepped in, abolished the hereditary
trusteeship, made provision for the payment of emoluments to them and regulated
the same in Chapter III, for the proper and efficient management of the
religious institutions and endowments. The legislative scheme is only to ensure
efficiency and proper management in a secular manner and, therefore, the
provisions are not in violation of Articles 25 and 26 of the Constitution. He
also pointed out that there is no prohibition to make the law applicable to
Hindu religious situations and endowments, without bringing religious or
charitable institutions or endowments established by persons belonging to other
religions. It could be done in a phased manner, wherever evils are pointed out.
The statutory intervention in that behalf would be inevitable and accordingly
be availed of to enact a law in that behalf. The Act which is applicable to
Hindu religious or charitable institutions or endowments, therefore, does not
violate Article 14. Procedure for appointment of a non-hereditary trustee is a
fair procedure for due administration and maintenance of religious or
charitable institutions and endowments.
Having
regard to these diver contentions, the question arises: whether Sections 15,
16, 17, 29(5) and 144 of the Act are ultra vires the Constitution. They reads
thus:
"15.
Appointment of Board of Trustees:-
(1) In
respect of a charitable or religious institution or endowment including in the
list published under clause (a) of Section 6- (a) whose annual income exceeds
rupees ten lakhs, the Government shall constitute a Board of Trustees
consisting of nine persons appointed by them;
(b) whose
annual income does not exceed rupees ten lakhs, the Commissioner shall
constitute a Board of Trustees consisting of seven persons appointed by him.
(2) In
respect of a charitable or religious institution or endowment included in the
list published under clause (b) of Section 6, the Deputy Commissioner having
jurisdiction shall constitute a Board of Trustees consisting of seven persons
appointed by him.
(3) In
the case of any charitable or religious institution or endowment included in
the list published under clause (c) of Section 6, the Assistant Commissioner
having jurisdiction shall constitute a Board of Trustees consisting of five
persons appointed by him :
Provided
that the Assistant Commissioner may either in the interest of the institution
or endowment or for any other sufficient cause or for reasons to be recorded in
writing appoint a single trustee instead of a Board of Trustees,
16.
Abolition of hereditary trustees:- Notwithstanding any compromise or agreement
entered into or scheme framed or judgment, decree, or order passed by any
court, tribunal or other authority or in a deed or other document prior to the
commencement of this Act and in force on such commencement, the rights of a
person for the office of the hereditary trustee or mutawalli or dharmakarta or muntazim
or by whatever name it is called shall stand abolished on such commencement.
17.
Procedure for making appointments of trustees and their term:-(1) In making the
appointment of trustees under Section 15 the Government, the Commissioner, the
Deputy Commissioner or the Assistant Commissioner as the case may be, shall
have due regard to the religious denomination or any such section thereof to
which the institution belongs or the endowment is made and the wishes of the
founder:
Provided
that one of the trustees shall be from the family of the founder, if qualified.
Further
details are not relevant.
XXX XXX
XXX (4) No person shall be a trustee in more than one Board of Trustees.
29.(5)
(a) The Executive Officer appointed under this section shall be under the
administrative control of, the trustee of the institution or endowment and
shall be responsible for carrying out all lawful directions issued by such
trustee, from time to time;
(b)
The Executive Officer shall, subject to such restrictions as may be imposed by
the Government - (i) be responsible for the proper maintenance and custody of
all the records, accounts and other documents and of all the jewels, valuables,
moneys, funds and other properties of the institution or endowment;
(ii) arrange
for the proper collection of income and for incurring of expenditure;
(iii) sue
or be sued by the name of the institution or endowment in all legal proceedings
:
Provided
that any legal proceeding pending immediately before the commencement of this
Act, by or against an institution or endowment in which any person other than
an Executive Officer is suing or being sued shall not be affected;
(iv)
all moneys received by the institution or endowment in such bank or treasury as
may be prescribed and be entitled to sign all orders cheques against such
moneys;
Provided
that such deposit may be made in the treasury if the rate of interest offered
by it is higher than that of any bank.
(v) have
power in cases of emergency, to direct the execution of any work or the doing
of any act which is provided for in the budget for the year or the immediate
execution or doing of which is in his opinion, necessary for the preservation
of properties of the institution or endowment or for the service or safety of
the pilgrims resorting thereto and to direct that the expenses of executing
such work or the doing such act shall be paid from the funds of the institution
or endowment :
Provided
that the Executive Officer shall report forthwith to the trustee any action
taken by him under this sub- clause and the reasons therefor.
(c)
The Executive Officer shall, with the prior approval of the trustee, institute
any legal proceedings in the name of the institution or endowment, or defend
any such legal proceedings;
(d)
Where there is no Executive Officer in respect of any charitable or religious
institution or endowment, the trustee or the Chairman of the Board of Trustees,
as the case may be, of the institution or endowment shall exercise the powers
perform the functions and discharge the duties of an Executive Officer.
XXX XXX
XXX 144. Abolition of shares in Hundi and other rusums:- Notwithstanding any
judgment, decree or order of any Court, Tribunal or other authority or any
scheme, custom, usage or agreement, or in any manual prepared by any
institution or in any Farmana or Sanad or any deed or order of the Government
to the contrary governing any charitable or religious institution or endowment,
all shares which are payable or being paid or given or allowed at the
commencement of this Act to any trustee, Dharmakartha, Mutawalli, any office
holder or servant including all offerings made in the premises of the Temple or
at such places as may be specified by the Trustee, all Prasadams and Panyarams
offered either by the Temple or devotee, and such other kinds of offerings, all
shares in the lands of the institution or endowment allotted or allowed to be
in possession and enjoyment of any archaka, office holder or servant towards
remuneration or otherwise for rendering service and for defraying the `Paditharam'
and other expenses connected with the service or management of the temple,
shall stand abolished with effect on and from the commencement of this
Act." The object of the Act is to consolidate and amend the law relating
to the administration and governance of charitable and Hindu religious
institutions and endowments in the State of Andhra Pradesh as the title of the Act itself indicates. It applies to all
public charitable institutions and endowments, whether registered or not, in
accordance with the provisions of the Act other than wakfs governed under the Wakfs
Act, 1954. It also applies to all Hindu public religious institutions and
endowments whether registered or not in accordance with the provisions of the
Act. Section 2(16) defines "hereditary trustee" to mean the trustee
of a charitable or religious institution and endowment, the succession to whose
office devolves according to the rule of succession laid down by the founder or
according to usage or custom applicable to the institution or endowment or
according to the law of succession for the time being in force, as the case may
be. "Charitable endowment" means all property given or endowed for any
charitable purpose. Religious institutions or endowment, as defined in Section
2(22), means property (including movable property) and religious offerings
whether in cash or kind, given or endowed for the support of a religious
institution or given or endowed for the performance of any service or charity
of a public nature connected herewith or of any other religious charity and
includes the institution concerned and also the premises thereof.
"Religious institution" defined in Section 2(23), means a math,
temple or specific endowment and includes a Brindavan, Samadhi or any other
institution established or maintained for a religious purpose. "Specific
endowment", defined by Section 2(25), means any property or money endowed
for the performance of any specific service or charity in a charitable or
religious institution or for the performance of any other charity, religious or
otherwise, Under Section 6 of the Act, the Commissioner shall prepare
separately and publish in the prescribed manner, a list of all religious or
charitable institutions and endowments etc., all properties belonging to or
given or endowed to the charitable or religious institutions or endowments, as
the case may be.
Equally,
of public religious or charitable institutions or endowments. Section 15 deals
with appointment of board of trustees in accordance with the procedure
prescribed thereunder. Section 16, with a non obstante clause, abolishes
hereditary trusteeship. Consequently, the right of a person for the office of
the hereditary trustee or mutawalli or dharmakarta or muntazim or by whatever
name called, stands abolished on commencement of the Act. Section 17 provides
procedure to make appointment of trustees and their term of office. Section
29(5) deal with the appointment and duties of Executive Officers who shall be
responsible for carrying out all lawful directions issued by trustee from time
to time. He shall be responsible for the proper maintenance and custody of all
records, accounts and other documents and all the jewels, valuables etc. of the
institution or endowment. Section 144 deals with the abolition of shares being
paid or allowance given or allowed to any trustee, dharmakartha, mutawalli, any
office holder or servant. The shares in the land or institution or endowment
allotted or allowed to be in possession and enjoyment of office holder towards
remuneration or otherwise stands abolished.
To
complete the narrative and to have homogeneous whole, it is of relevance to
tread into the powers and duties of the trustees regulated in Chapter III of
the Act.
Section
23 deals with powers of the trusses. The trustee of every charitable or
religious institution or endowment has to administer its affairs, manage its
properties and apply its funds in accordance with the terms of the trust, the
usage of the institution or endowment, and all lawful directions which a
competent authority may issue in respect thereof. He is also enjoined to act as
carefully as a man of ordinary prudence would deal with such affairs, fund and
properties, if they were of his own. All powers incidental to the prudent and
beneficial administration of charitable or religious institution or endowment
are entrusted to him.
Other
details are incidental to the exercise of the power and for the present
controversy they are not of material consequence, hence omitted. Section 24
prescribes duties of the trustees. Section 25 deals with fixation of dittam
known as "scale of expenditure". Section 26 prescribes powers of
trustees of charitable or religious institution over trustee of specific
endowments. Section 27 validates acts of trustees or board of trustees despite
defect in their performance thereof. Section 29 deals with appointment and
duties of Executive officers and Section 32 with appointment of subordinate
officers. Section 30 and 31 relate to appointment of Engineering staff,
Architects and Shilpis.
The
first question is whether it is necessary that the legislature should make law
uniformly applicable to all religious or charitable or public institutions and
endowments established or maintained by people professing all religions. In a
pluralist society like India in which people have faith in their respective
religions, beliefs or tenets propounded by different religions or their off-
shoots, the founding fathers, while making the Constitution, were confronted
with problems to unify and integrate people of India professing different
religious faiths, born in different castes, sex or sub-sections in the society
speaking different Languages and dialects in different regions and provided
secular Constitution to integrate all sections of the society as a united Bharat.
The directive principles of the Constitution themself visualise diversity and
attempted to foster uniformity among people of different faiths. A uniform law,
though is highly desirable, enactment thereof in one go perhaps may be
counter-productive to unity and integrity of the nation. In a democracy
governed by rule of law, gradual progressive change and order should be brought
about. Making law or amendment to a law is a slow process and the legislature
attempts to remedy where the need is felt most acute. It would, therefore, be
inexpedient and incorrect to think that all laws have to be made uniformly
applicable to all people in one go. The mischief or defect which is most acute
can be remedied by process of law at stages.
The
second question is: whether abolition of hereditary trusteeship violates
Articles 25 and 26 of the Constitution.
Article
25(1) assures, subject to public order, morality and health and to the other
provisions of Chapter III that all persons are equally entitled to freedom of
conscience and the right freely to profess, practice and propagate religion.
Sub-clause (2) of Article 25 saves the operation of the existing law and also
frees the State from Article 25(1) to make any law regulating or restricting
any economic, financial, political or other secular activity, which may be
associated with religious practice. Equally, law may provide for social welfare
and reform, the throwing open of Hindu religious institutions of a public
character to all classes and sections of the society. Article 26 gives freedom
to manage religious affairs, subject to public order, morality and health,
every religious denomination or any section thereof to establish institutions
for religious and charitable purpose, to manage its own affairs in matters of
religion, to own and acquire movable and immovable property and to administer
such property in accordance with law.
Contents
of Articles 25 and 26 of the Constitution have been considered in several
decisions starting from Shirur Mutt case (infra) and have been placed beyond
controversy.
The
first principle laid is that the protection of these articles is not limited to
matters of doctrine or belief.
They
extend also to acts done in pursuance of religion and, therefore, a guarantee
for rituals and observances, ceremonies and motive of worship which are
integral parts of religion. The second principle is that what constitutes an
essential part of religion or religious properties has to be decided by the
Courts with a reference to the doctrine of particular religion and includes
practices which are regarded by the community as a apart of its religion.
In The
Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar
of Sri Shirur Mutt [(1954) S.C.R. 1005], known as Shirur Mutt case, this Court
had held that the language of Article 25 indicates to secure to every person
subject to public order, health and morality, a freedom not only to entertain
such religious belief, as may be approved of by his judgment and conscience,
but also to exhibit his belief in such outward acts as he thinks proper and to
propagate or disseminate his ideas for the edification of others. It is the
propagation of belief that is protected, no matter whether the propagation
takes place in a church, or monastery or in a temple or parlour meeting. At
page 1023, it was held that the word "religion" has not been defined
in the Constitution and it is a term which is hardly susceptible of any rigid
definition. Religion is certainly a matter of faith with individuals or
communities and it is not necessarily theistic. Religion, undoubtedly, has its
basis in a system of beliefs or doctrines which are regarded by those who
profess that religion conducive to their spiritual well being. A religion may
not only lay down a code of ethical rules for its followers to accept, it might
prescribe rituals and observances, ceremonies and modes of worship etc.
guarantee under the Constitution not only protects the freedom of religious
denomination but it also protects ceremonies and modes of worship which are
regarded as integral parts of religion; and the forms and observations might
extend even to interests of food and dress. What Article 25(2) (a) contemplates
is not regulation by the State of religious practices as such, the freedom of
which is guaranteed by the Constitution. The guarantee is in-built to every
religion to establish and maintain institutions for religious and charitable
purposes and their management in matters of religion to own and acquire movable
and immovable properties. But they are subject to Article 25 and other
provisions of the Constitution.
Founding
a temple or a charitable institution is an act of religious duty and has all
the aspects of Dharma.
BIG
PRARSARA SMRITI "10th Chapter, Sloks 1, 2 and 3 indicates as under
"Let me describe the charities with the procedures, narrated by Sage Parasara
to Veda Vyasa :
1. By
charity one can go to heaven.
2. By
charity one enjoys peace.
3. Here
and there [in this and other world], the one who did charity will be respected.
4.
There is no better religious duty in all the three worlds than doing charity.
5.
Therefore, charity to be practiced as far as possible MANU SMRITI 4TH Chapter Sloka
227, 228
1. One
should practice charity daily with a pleasant heart to the deserving, as far as
he can. Offering charity is real worship of the God without the elaborate
procedure of having sacrificial fire lit etc.
2. At
least something should be given in charity when sought as one of the many
beneficiaries may lift the donor from going to hell." Bhagwat Geeta and
some of the Smrities extol and motivate charity for spiritual well being as is
shown hereunder:
"1.
BHAGWAD GEETA - CHAPTER 18 Yagya Dana Tapa Karma, Na Tyajyam, Karyamev yat.
The Ygnya,
charity and Tapas are never to be given up; in fact all these three things are
to be strictly observed on a continuous basis. These are the most sacred acts
which makes the man pure.
2.
VYSA SMRITHI - CHAPTER IV - SLOKA 15- 17 I am discribing the Dana Dharma as
detailed by Vyasa. What one gives daily as charity and what one enjoys daily is
the only wealth one has as his. The other is the wealth meant for some one
else. For, some one else will be enjoying with his wealth and even his wife,
when the man dies.
3.
KAPILA SMRITHI - SLOKA 427 Charity shall be done by all; especially when one
has the means he should do charity without fail on every occasions." Hindu
Piety found expression in establishing temples, creation of endowments or
specific endowments, by gifts to idols and images consecrated and installed in
temples and to religious institutions of every kind. The word `charity' in a
legal sense includes every gift for educational, a general public use, to be
applied consistent with existing laws for the benefit of an indefinite number
of persons and designed to benefit them from a religious, moral, physical or
social stand-point - vide Black's Law Dictionary at page 233.
Therefore,
every Hindu imbued with religious or charitable disposition and pious wish
would create or establish a charitable or religious institution or endowment or
specific endowments for general public use to be applied consistent with the
law for the benefit of an indefinite number of people or persons and designed
to benefit the religious, moral and social stand-point equally of educational
stand- point. Therefore, a Hindu who has founded a religious or charitable
institution or endowment has a fundamental right to administer it in accordance
with law; and so, the law must leave the right of administration to the
religious denomination or general body itself, subject to the restrictions and
regulations as the law might chose to impose. In Shirur Mutt case (supra), this
Court held at page 1029 that a law which takes away the right to administration
to the religious denomination altogether and vests it in any other authority
would amount to a violation of the right guaranteed under clause (d) of Article
26. So. A law would not totally divest the administration of a religious
institution or endowment, but the State has general right to regulate the right
to administration of a religious or charitable institution or endowment; and
such a law may chose to impose such restrictions whereof as are felt most acute
and provide a remedy therefor.
In Ratilal
Panachand Gandhi vs. The State of Bombay & Ors. [(1954) S.C.R. 1055 at page
1063], this Court further had pointed out the distinction between clauses (b)
and (d) of Article 26 thus: in regard to affairs in matters of religion, the
right of management given to a religious body is a guaranteed fundamental right
which no legislation can take away. On the other hand, as regards
administration of property which a religious denomination is entitled to own
and acquire, it has undoubtedly the right to administer such property, but only
in accordance with law. This means that the State can regulate the
administration of trust properties by means of laws validly enacted; but here
again it should be remembered that under Article 26(d), it is the religious
denomination or general body of religion itself which has been given the right
to administer its property in accordance with any law which the State may
validly impose.
A law,
which takes away the right of administration altogether from the religious
denomination and vests it in any other or secular authority, would amount to
violation of the right which is guaranteed by Article 26(d) of the
Constitution. In that case, the Court found that the exercise of the power by
the Charity Commissioner or the Court to divert the trust property or funds for
purposes which he or it considered expedient or proper, although the original
objects of the founder can still be carried out, was an unwarranted
encroachment on the freedom of religious institutions in regard to the
management of their religious affairs.
It
would thus be clear that the right to establish a religious institution or
endowment is a part of religious belief or faiths, but its administration is a
secular part which would be regulated by law appropriately made by the
legislature. The regulation is only in respect of the administration of the
secular part of the religious institution or endowment, and not of beliefs,
tenets, usages and practices, which are integral part of that religious belief
or faith.
It is
true that Section 16 of the Act, which has been reproduced earlier, abolishes
the hereditary right in trusteeship but not the right to trusteeship itself. It
is obvious that Section 18 itself recognises the right to management of a
religious or charitable institution or endowment or specific endowment by one
of the members belonging to the family of the founder as trustee; but, of
course, as a member of the board of non-hereditary trustees.
Though
hereditary right is a part of the right to administer the Hindu religious or
charitable Institution or endowment under the predecessor Act 1966, it is seen
that Justice Challa Kondaiah Commission, which is a store-house for the
legislature to find the existence of evils or mischief in the administration
and governance of charitable and Hindu religious institutions or endowments and
which the legislature has taken cognizance of while making the law at hand, had
pointed out the acute need to provide remedy.
Words
are the skin of the language. The language opens up the bey of the maker's
mind. The Legislature gives its own meaning and interpretation of the law. It
does so employing appropriate psephology to attain the object of legislative
policy which it seeks to achieve.
Section
16 with a non obstante clause abolishes the hereditary right in trusteeship of
a charitable and Hindu religious institutions or endowments. It is settled law
that the legislature within its competence, may amend the law.
The
language in Section 16 seeks to alter the pre-existing operation of the law.
The alteration in language may be the result of many factors. It is settled
legislative device to employ non obstante clause to sustaibility alter the pre-
existing law consistent with the legislative policy under the new Act to
provide the remedy for the mischief the legislature felt most acute. Section
16, therefore, applying non obstante clause, altered the operation of any
compromise, agreement entered into or a scheme framed or a judgment, decree or
order passed by any court, tribunal or other authority or any deed or other
document prior to the Act. The pre-existing hereditary right in trusteeship in
the office of the hereditary trustee, mutawalli, dharmakartha or muntazim or by
whatever name it is called and abolished the same prospectively from the date
of the commencement of the Act. Article 15 [1] of the Constitution prohibits
discrimination against any citizen on grounds only of religion, race, caste,
sex, place of birth or any of them.
Section
17 to 19 recognise general right to every qualified Hindu to claim appointment
as trustee. Section 16 intends to remove discrimination on grounds of heredity
which otherwise is violative of Article 15(1). Article 13 declares such
inconsistent custom as void. The predecessor Act 1966 recognised customary
right, which the legislature has power to take away such recognition and order
every eligible Hindu to be considered for appointment as trustee in the manner
prescribed by law. Hereditary principle being inconsistent with Article 15(1),
the legislature thought it fit to abolish the same. Moreover, by reason of
hereditary nature of succession to trusteeship or mutawalli etc. inherently
visited with mismanagement or misappropriation of the property of the
charitable or Hindu religious institutions or endowments, the object of the
endowment etc. there by getting defeated. With a view to remedy the same and to
effectuate proper and efficient management and governance of charitable and
Hindu religious institutions and endowments, the Act was enacted. Instead of
management by a single person Chapter III introduced in Sections 15, 17, 18 and
19 as a composite scheme prescribing disqualifications and qualifications for
trusteeship, procedure for appointment of trustees and appointment and
constitution of the board of trustees so as to have collective proper and
efficient administration and governance of the institution and endowment. The
abolition of the right to hereditary trusteeship, therefore, cannot be declared
to be unconstitutional.
Chapter
III relates to administration and management of charitable and Hindu religious
institutions and endowments, as its heading indicates. By operation of Section
14 all properties belonging to or given or endowed to a charitable or religious
situation or endowment shall vest in that institution. A scheme has been
evolved therein first to abolish the hereditary right in trusteeship. That has
been accomplished under Section 16. As a corollary, the management and
governance was entrusted to the trustees and the board of trustees as a
representative body. It is already held that the scheme for appointment of the
trustees and constitution of the board of trustees is to effectuate the
legislative object of efficient and proper administration and management of
charitable and Hindu religious institutions and endowments. The Act entrusted
the collective responsibility to the board of trustees appointed under Section
15. Section 15 makes a distinction in respect of the charitable or religious
institutions or endowments covered by clauses (a) to (c) of Section 6 as
distinct classes. In respect of the charitable or religious institutions or
endowments covered by clause (a) of Section 6 whose annual income is Rs. 10 lakhs
and above, the board of trustees consisting of 9 persons shall be appointed
under clause (a) of sub-section (1) of Section 15. The appointing authority of
such board of trustees shall be the Government.
In
case the income does not exceed Rs.10 lakhs, the Commissioner has been given
power to appoint board of trustees consisting of 7 persons. In respect of
charitable or religious institutions or endowments included in the list
published under clause (b) of Section 6, the Deputy Commissioner having
jurisdiction has been empowered to constitute a board of trustees consisting of
7 persons as envisaged under sub-section (2) of Section 15. In the case of
charitable or religious institutions or endowments included in the list
published under clause (c) of Section 6, the Assistant Commissioner having jurisdiction
has been empowered to appoint trustees and constitute board of trustees
consisting of five persons. In the case of charitable or religious institutions
or endowment covered by clause (c) of Section 6, obviously based upon the
factual matrix, in the interest of the institution or endowment or for any
other sufficient cause after recording reasons in writing, the Assistant
Commissioner is empowered by the proviso to sub-section (3) of Section 15 to
appoint a single trustee to a charitable or religious institution or endowment
instead of appointing and constituting a board of trustees. It could be seen
that the scheme of appointment of the trustees and appointment and constitution
of the board of the trustees being an integral part and having evolved policy
to entrust collective responsibility of management and administration of
charitable and religious institution or endowment instead of entrusting such
responsibility to a single individual, Section 15 was brought on statute to
effectuate the said policy. The legislative competence is not questioned. The
policy involved cannot be faulted nor can it be assailed as unconstitutional
when it seeks to achieve a public purpose, viz., secular management of the
charitable or religious institutions or endowments to effectuate efficient and
proper management and governance of the said institutions. Accordingly, we are
of the considered view that abolition of the hereditary right in trusteeship is
unexceptionable, it being a part of due administration, which is a secular
activity. Being a permissible law under Article 25(2), it is not violative of
Article 25(1) of the Constitution. It cannot further be held that either
Section 15 or Section 16 of the Act is ultra vires the Constitution.
But
immediate question is whether taking away of the management and vesting the
same in the board of non- hereditary trustees, constituted under Section 15, is
valid in law. It is seen that the perennial and perpetual source to establish
or create any religious or charitable institution or endowment of a specific
endowment is the charitable disposition of a pious persons or other benevolent
motivating factors, but to the benefit of indeterminate number of people having
the common religious faith and belief which the founder espouses. Even a desire
to perpetuate the memory of an philanthropist or a pious person or a member of
the family or founder himself may be the motive to establish a religious or
charitable institution or endowment or specific endowment. Total deprivation of
its establishment and registration and take over of such bodies by the State
would dry up such sources or acts of pious or charitable disposition and act as
disincentive to the common detriment.
Hindus
are majority in population and Hinduism is a major religion. While Articles 25
and 26 granted religious freedom to minority religions like Islam, Christianity
and Judaism, they do not intend to deny the same guarantee to Hindus.
Therefore, protection under Articles 25 and 26 is available to the people
professing Hindu religion, subject to the law therein. The right to establish a
religious and charitable institution is a part of religious belief or faith
and, though law made under clause (2) of Article 25 may impose restrictions on
the exercise of that right, the right to administer and maintain such
institution cannot altogether be taken away and vested in other party; more
particularly, in the officers of a secular Government. The administration of
religious institution or endowment or specific endowment being a secular
activity, it is not an essential part of religion and, therefore, the
legislature is competent to enact law, as in Part III of the Act, regulating
the administration and governance of the religious or charitable institutions
or endowment. They are not part of religious practices or customs. The State
does not directly undertake their administration and expend any public money
for maintenance and governance thereof. Law regulates appropriately for
efficient management or administration or governance of charitable and Hindu
religious institutions or endowments or specific endowments, through its
officers or officers appointed under the Act.
The
question then is whether legislative declaration of the need for maintenance,
administration and governance of all charitable and Hindu religious
institutions or endowments or specific endowments and taking over the same and
vesting the management in a trustee or board of trustees is valid in law. It is
true, as rightly contended by Shri P.P. Rao, that the legislature acting on the
material collected by Justice Challa Kondaiah Commission amended and repealed
the predecessor Act 1966 and brought the Act on statute. Section 17 of the
predecessor Act of 1966 had given power to a hereditary trustee to be the
chairman of the board of non-hereditary trustee. Though abolition of hereditary
right in trusteeship under Section 16 has already been upheld, the charitable
and religious institution or endowment owes its existence to the founder or
members of the family who would resultantly evince greater and keener
responsibility and interest in its proper and efficient management and
governance. The autonomy in this behalf is an assurance to achieve due
fulfillment of the objective with which it was founded unless, in due course,
foul in its management is proved. Therefore, so long as it is properly and
efficiently managed, he is entitled to due freedom of management in terms of
the deed of endowment or established practice or usage. In case a board of
trustees is constituted, the right to preside over the board given to the
founder or any member of his family would generate feeling to actively
participate, not only as a true representative of the source, but the same also
generate greater influence in proper and efficient management of the charitable
or religious institution or endowment. Equally, it enables him to persuade
other members to follow the principles, practices, tenets, customs and sampradayams
of the founder of the charitable or religious institution or endowment or specific
endowment. Mere membership along with others, many a times, may diminish the
personality of the member of the family. Even in case some funds are needed for
repairs, improvement, expansion etc., the board headed by the founder or his
family member may raise funds from the public to do the needful, while the
executive officer, being a Government servant, would be handicapped or in some
cases may not even show interest or inclination in that behalf.
With a
view, therefore, to effectuate the object of the religious or charitable
institution or endowment o r specific endowment and to encourage establishment
of such institutions in future, making the founder or in his absence a member
of his family to be a chairperson and to accord him major say in the management
and governance would be salutary and effective. The founder or a member of his
family would, thereby, enable to effectuate the proper, efficient and effective
management and governance of charitable or religious institution or endowment
or specific endowment thereof in future. It would add incentive to establish
similar institutions.
Keeping
this pragmatic perspective in consideration, the question that emerges is:
whether Sections 17 and 29(5) are valid in law. Reading down the provisions of
an Act is a settled principle of interpretation so as to sustain their
constitutionality, as well as for effectuation of the purpose of the statute.
With the above in mind, we may examine the validity of Section 17 and 29(5).
These statutory provisions are grounded on the findings of the report of Challa
Kondaiah Commission, which indicated mismanagement and misutilisation of funds
of charitable and Hindu religious institutions and endowments in a big way.
This
is, however, a general finding; and we are prepared to agree with the learned
counsel for the petitioners that all the charitable and religious institutions
may not be painted with the same brush. We have no doubt that there would be
charitable or religious institutions in the State which are neither mismanaged
nor there is misutilisation of funds.
Even
so, if the legislature acted on the general findings recorded by the
Commissioner, due weightage has to be given to the same. Our view that the
board of trustees should be headed either by the founder or a member of his family,
would go a long way in seeing the fulfillment of the wishes and desires of the
founder.
Sections
17 and 29(5) cannot, therefore, be faulted.
Whatever
rigor these sections have, would be duly get softened by the requirement of the
board being headed by the founder or any of his family members, as the case may
be.
Subject
to this rider, we uphold the validity of these two Sections.
The
question then is: whether abolition of the emoluments under Section 144 is
unconstitutional? It is seen that the object of the Act is to prevent misuse of
the trust for personal benefit. It is founded on the report of the aforesaid
Commission. It is a matter of legislative wisdom and policy. It is not the
contention that the legislature has no competence to abolish the system of
payment. As stated earlier, it is a legislative judgment reflective of the will
of the sovereign people. The Court would give respect and primacy to the
legislative judgment, rather than to judicial conclusion. So, we are of the considered
view that Section 144 is not unconstitutional in relation to its application to
charitable and religious institutions and endowments. The scope and ambit of
Section 144 would be fully discussed in Archaka cases, i.e., W.P. No. 638/87
& batch.
So, we
uphold the validity of Sections 15, 16, 17, 29(5) and 144, subject to the rider
mentioned earlier qua Sections 17 and 29(5). The writ petitions and the
transfer cases are disposed of accordingly. No costs.
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