Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, CJ and R.C Khulbe, J., addressed the challenge placed on the constitutionality of the Uttarakhand Char Dham Devasthanam Management Act, 2019 by Dr Subramanian Swamy in a very detailed manner and reached the conclusion that the same fails to be unconstitutional.
Uttarakhand Char Dham Devasthanam Management Act, 2019
The said act is entrusted with the management of Hindu temples to a Board whose chairman and members are nominated by the State Government.
Through this act legal provisions for temples and devasthanams located in Uttarakhand are made.
Chardham temples in Uttarakhand prior to the 2019 Act
Shri Badrinath and Kedarnath temples, were, prior to the 2019 Act coming into force, under the control and management of a managing committee constituted under the U.P. Shri Badrinath and Kedarnath Temples Act, 1939 which continued to remain in force till it was repealed by the 2019 Act.
Dr Subramanian Swamy
He sought to draw a distinction between the Somnath, Shirdi Sai Baba and Vaishno Devi temples and temples brought within the ambit of the 2019 Act.
Further he suggests that, after striking down the provisions of the 2019 Act as unconstitutional, the remedy lies in the promulgation of a Central Legislation in consultation with the heads of religious denominations who are members of the Hindu Dharma Acharya Saha.
What Dr Subramanian Swamy suggests, as an alternative to the 2019 Act?
He suggests of a Central Legislation passed by the Parliament.
Subject to constitutional limitations, including legislative competence, the power of either the Central or the State legislature to make laws is plenary.
Whether the Board constituted under the 2019 Act should be continued in its present form, or be replaced by another, are all matters for the competent legislatures to decide, and are not matters for judicial intervention.
A legislation does not become unconstitutional merely because there is another view.
Submissions were put forth by Dr Subramanian Swamy, in-persons and Rajendra Dobhal, Senior Counsel and Manisha Bhandari, Counsel for Petitioners.
Advocate General appearing for the State Government and Ravi Babulkar, Senior Counsel for the Board and Dr Kartikey Hari Gupta, Counsel for the interveners, made submissions in support that the Legislation is intra-vires Part III of the Constitution.
Writ Petition is a Political Interest Litigation?
Bench while disagreeing to the said submission in view of the fact that Dr Subramanian Swamy who has invoked the jurisdiction of this Court questioning the validity of 2019 Act and the ruling dispensation in the State of Uttarakhand belong to the same political party.
Mockery of Constitutional Principles
Respondents actions make a mockery of the constitutional principles and are an abuse of the legal process and statutory power, they are vitiated by malafides and extraneous considerations as held by the Supreme Court in Supreme Court Advocates on Record Assn. v. UOI, (1993) 4 SCC 441
Further, No obligation is placed by the Constitution on the State Legislature to produce evidence before the Court, regarding improper management or mis-management of the Char Dham fund, necessitating the 2019 Act being made — Neither is it permissible for us, nor do we see any reason to do so, to declare the 2019 Act unconstitutional on this score.
Article 13 of the Constitution of India
Article 13 relates to laws inconsistent with and in derogation of the fundamental rights.
No post-constitution law can be made contravening the provisions of Part III, and therefore such a law to that extent, though made, is a nullity from its inception, and is still born.
As Articles 14, 25, 26 and 31-A, which the petitioners claim the 2019 Act violates, are all in Part III of the Constitution, if the 2019 Act is held to be in contravention of anyone of the aforesaid Articles, it is liable to be declared void to the extent of the contravention.
Article 14 of the Constitution & Tests of valid classification
Temples covered by 2019 Act are primarily the Char Dhams and the object sought to be achieved by the said Act is to rejuvenate these temples and to provide effective management thereof by constituting a Devasthanam Management Board, twin test of a valid classification under Article 14 of the Constitution of India are satisfied.
Object of classifying temples within the ambit of 2019 Act by the Devasthanam Management Board, undoubtedly reasonable. It cannot, therefore, be said to suffer from manifest arbitrariness violating Article 14 of the Constitution of India.
Is the Act ultra vires Article 26 of the Constitution of India?
Article 26 of the Constitution confers freedom to manage religious affairs and, thereunder, subject to public order, morality and health, every religious denomination or any section thereof shall have the right
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.
Article 26 (b) of the Constitution of India
Under Article 26(b), a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and include even practices which are regarded by the community as part of its religion.
Court stated that, as long as the law does not totally divest the administration of a religious institution or endowment, by a religious denomination, the State has the general right to regulate the right of administration of a religious or charitable institution or endowment; and such a law may choose to impose such restrictions the need for which is felt the most, and to provide a remedy therefor.
Hindu and Sanatana Dharma | Hindus, professing and having faith in Sanatana Dharma, constitute a religious denomination?
Sanatana Dharma showcases, to its followers, the wide view of the world and a way of life with a clear and sagacious picture of reality.
Section 2(l) of the 2019 Act defines “Hindu religion” to mean a sect of Hindus professing or having faith in Sanatana Dharma. All Hindus, by and large, profess and have faith in the “Sanatana Dharma”. They cannot, therefore, be equated to any religious denomination, for the chord of a common faith and spiritual organization, which unites the adherents together, is absent.
Court found no merit in the submission that Hindus professing and having faith in Sanatana Dharma constitute a religious denomination.
A bare reading of Sections 3(1) and (2) of the 2019 Act would show that it is only persons, who follow Hindu Religion, (which is defined in Section 2(l) to mean such sect of Hindus professing Santhana Dharma or having faith in it), who can be nominated as the Chairman and members of the Board, to manage the secular affairs of the Chaar Dhaams and other temples referred to in the 2019 Act. —- The impugned Act cannot be said to violate their fundamental rights under Article 26 of the Constitution of India.
No religious denomination can claim to manage the Badrinath and Kedarnath temples atleast from the year 1939. As both the Badrinath and Kedarnath temples were brought within the ambit of the U.P. Shri Badrinath and Shri Kedarnath Temples Act, 1939.
Denomination must be enjoying the right to manage the properties endowed in favour of the institutions. If the right to administer the properties is lost, the protection under Article 26 of the Constitution of India is not available.
Right of administration over the properties of the Badrinath and Kedarnath temples, even if any such right had existed earlier, was lost, on the 1939 Act coming into force, no such right can now be claimed by a religious denomination even if it existed.
Court on perusal of the contentions placed by Dr Subramanian Swamy held that viewed from any angle, the submission of Dr. Subramanian Swamy that the 2019 Act violates the fundamental rights guaranteed under Article 26 of the Constitution, necessitates rejection.
Gangotri Dham Temple
No material was placed on record to show that the Semwal Brahmins constitute a religious denomination, or that they established the temple, or even that they exercised control over the management of the Gangotri temple at any stage prior to 2002, their claim for protection, under Article 26(d) of the Constitution of India, necessitates rejection.
“…ever since 1939 when the Rules were framed, it is the temple committee which was managing the affairs of the temple, and not the Semwal Brahmin community.”
The priests at Gangotri are Semwal Brahmins, a sub-caste of Brahmins, and their identity as a sub-caste would not make them a religious denomination. The Gangotri Dham temple is a public temple, and there are no exclusive identified followers of any cult.
The Char Dham temples are all public temples. None of them, including the Gangotri temple, belong to a family nor are they, as held earlier, been established by a religious denomination.
The public at large has the right to worship the deity in all the Char Dham and associated temples.
Void ab initio
If the 2019 Act is held to violate any one of the fundamental rights guaranteed by Part III of the Constitution, including Articles 14, 25 and 26 thereof, the said Act is liable to be declared void ab initio.
Mere fact that the 2019 Act is not saved by Article 31-A(1)(b) of the Constitution, makes little difference and is of no consequence.
The “properties belonging to the dieties of the Char Dham temples” shall continue to remain the properties of the Char Dhams, and it is only its possession alone which shall be with the Char Dham Devasthanam Board.
While concluding the decision after a thorough analysis of the contentions and facts relevant to the present matter, Court held that
If the law violates the fundamental rights guaranteed to the citizens of the country, then the law can either be struck down or be read down to bring it in consonance with the Constitution of India. A provision may be read down and its creases ironed out, to save it from being declared unconstitutional.
Relying on several decisions of the Supreme Court and High Courts, it stated that the words “shall devolve” in Section 22 shall be read as “devolve on the Char Dham and shall be maintained by the board”.
Likewise the words “may further acquire land”, in the proviso thereto, shall be read as “may further acquire land on behalf of the Char Dham”.
When so read, Section 22 and its proviso would be saved from being struck down as ultra vires the provisions of the Constitution.
Hence, challenge to the validity of the 2019 Act, on the ground that it violates Articles 14, 25, 26 and 31-A of the Constitution of India, fails. [Dr Subramanian Swamy v. State of Uttarakhand, 2020 SCC OnLine Utt 329 , decided on 21-07-2020]